1992)"

^& L f <^f 7C) 3c »/. fir* ' I c ■ i /

The
NORTH CAROLINA

PSORTH

ft.

ECEn

IN THIS ISSUE

EXECUTIVE ORDER

IN ADDITION

Final Decision Letter

PROPOSED RULES

Economic and Community Development

Electrolysis Examiners

Environment, Health, and Natural Resources

Human Resources

Insurance

Justice

Nursing, Board of

Speech and Language Pathologists and Audiologists

State Personnel

FINAL RULES
Revenue

RRC OBJECTIONS

RULES INVALIDATED BY JUDICIAL DECISION

CONTESTED CASE DECISIONS

ISSUE DATE: July 1, 1992

Volume 7 • Issue 7 • Pages 626-790

INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINTSTRATTVF ^n^

NORTH CAROLINA REGISTER

The North Carolina Register is published twice a month and
contains information relating to agency, executive, legislative and
judicial actions required by or affecting Chapter 150B of the
General Statutes. All proposed administrative rules and notices of
public hearings filed under G.S. 150B-21.2 must be published in
the Register. The Register will typically comprise approximately
fifty pages per issue of legal text.

State law requires that a copy of each issue be provided free of
charge to each county in the state and to various state officials and
institutions.

The North Carolina Register is available by yearly subscription
at a cost of one hundred and five dollars (S105.00) for 24 issues.
Individual issues may be purchased for eight dollars (S8.00).

Requests for subscription to the North Carolina Register should
be directed to the Office of Administrative Hearings,
P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447.

ADOPTION AMENDMENT, AND REPEAL OF
RULES

The following is a generalized statement of the procedures to be
followed for an agency to adopt, amend, or repeal a rule. For the
specific statutory authority, please consult Article 2A of Chapter
150B of the General Statutes.

Any agency intending to adopt, amend, or repeal a rule must
first publish notice of the proposed action in the North Carolina
Register. The notice must include the time and place of the public
hearing (or instructions on how a member of the public may request
a hearing); a statement of procedure for public comments; the text
of the proposed rule or the statement of subject matter; the reason
for the proposed action; a reference to the statutory authority for the
action and the proposed effective date.

Unless a specific statute provides otherwise, at least 15 days
must elapse following publication of the notice in the North
Carolina Register before the agency may conduct the public
hearing and at least 30 days must elapse before the agency can take
action on the proposed rule. An agency may not adopt a rule that
differs substantially from the proposed form published as part of
the public notice, until the adopted version has been published in
the North Carolina Register for an additional 30 day comment
period.

When final action is taken, the promulgating agency must file
the rule with the Rules Review Commission (RRC). After approval
by RRC, the adopted rule is filed with the Office of Administrative
Hearings (OAH).

A rule or amended rule generally becomes effective 5 business
days after the rule is filed with the Office of Administrative
Hearings for publication in the North Carolina Administrative Code
(NCAC).

Proposed action on rules may be withdrawn by the promulgating
agency at any time before final action is taken by the agency or
before filing with OAH for publication in the NCAC.

TEMPORARY RULES

Under certain emergency conditions, agencies may
temporary rules. Within 24 hours of submission to OAH
Codifier of Rules must review the agency's written statemei
findings of need for the temporary rule pursuant to the provisioi
G.S. 150B-21.1. If the Codifier determines that the findings
the criteria in G.S. 150B-21 .1, the rule is entered into the NCA
the Codifier determines that the findings do not meet the crit
the rule is returned to the agency. The agency may supplemei
findings and resubmit the temporary rule for an additional re'
or the agency may respond that it will remain with its in
position. The Codifier, thereafter, will enter the rule into
NCAC. A temporary rule becomes effective either whe
Codifier of Rules enters the rule in the Code or on the
business day after the agency resubmits the rule without cha
The temporary rule is in effect for the period specified in the ru
180 days, whichever is less. An agency adopting a temporarv
must begin rule-making procedures on the permanent rule a
same time the temporary rule is filed with the Codifier.

NORTH CAROLINA ADMINISTRATIVE CO!

The North Carolina Administrative Code (NCAC)
compilation and index of the administrative rules of 25
agencies and 38 occupational licensing boards. The N(
comprises approximately 15,000 letter size, single spaced pag<
material of which approximately 35% of is changed annu
Compilation and publication of the NCAC is mandated by
150B-21.18.

The Code is divided into Titles and Chapters. Each state ag
is assigned a separate title which is further broken dow
chapters. Title 21 is designated for occupational licensing boarc

The NCAC is available in two formats.

(1) Single pages may be obtained at a minimum co
two dollars and 50 cents (S2.50) for 10 pages or
plus fifteen cents (SO. 15) per each additional page.

(2) The full publication consists of 53 volumes, totalir
excess of 15,000 pages. It is supplemented mor
with replacement pages. A one year subscription t(
full publication including supplements can
purchased for seven hundred and fifty dol
(S750.00). Individual volumes may also be purch
with supplement service. Renewal subscription:
supplements to the initial publication are available.

Requests for pages of rules or volumes of the NCAC shou.
directed to the Office of Administrative Hearings.

CITATION TO THE NORTH CAROLINA
REGISTER

The North Carolina Register is cited by volume, issue,
number and date. 1:1 NCR 101-201, April 1, 1986 refe

Volume 1, Issue 1, pages 101 through 201 of the North Car.
Register issued on April 1, 1986.

FOR INFORMATION CONTACT: Office
Administrative Hearings, ATTN: Rules Division, P.C
Drawer 27447, Raleigh, North Carolina 27611-7447, (91
733-2678.

NORTH
CAROLINA
REGISTER

Office of Administrative Hearings

P. O. Drawer 27447

Raleigh, NC 27611-7447

(919) 733 - 2678

Julian Mann III,

Director
James R. Scarcella Sr.,

Deputy Director
Molly Masich,

Director APA Services

Staff:

Ruby Creech,

Publications Coordinator
Teresa Kilpatrick,

Editorial Assistant
Jean Shirley,

Editorial Assistant

ISSUE CONTENTS

I. EXECUTIVE ORDER

Executive Order 168

.626

II. IN ADDITION

Final Decision Letter.

.628

III. PROPOSED RULES

Economic and Community
Development

Banking Commission 629

Environment, Health, and
Natural Resources

Coastal Management 655

Environmental Management. ...644

Health Services 659

Human Resources

Facility Services 634

Insurance

Engineering and Building

Codes 643

Justice

Alarm Systems Licensing

Board 643

Licensing Boards

Electrolysis Examiners 700

Nursing, Board of, 700

Speech and Language
Pathologists & Audiologists ...705
State Personnel

Office of State Personnel 705

IV. FLNAL RULES
Revenue

License and Excise Tax 712

V. RRC OBJECTIONS 748

VI. RULES LNVALIDATFD BY

JUDICIAL DECISION 752

ML CONTESTED CASE
DECISIONS

Index to ALJ Decisions 753

Text of Selected Decisions 768

MIL CUMULATIVE INDEX 789

NORTH CAROLINA REGISTER

Publication Schedule

(May 1992 - December 1993)

Issue

Last Day

l^ist Day

Earliest

Last Day

♦

Date

for

Date for

Earliest

Filing

Electronic

Public

Adoption

Submit

Effective

Filing

Hearing

by
Agency

to
RRC

Date

**+********+********+********+*♦**+**+**♦****++*****+*+**++*******+

05/01/92

04 10 92

04/17/92

05/16/92

05/31/92

06/20/92

08/03/92

05/15/92

04/24/92

05/01/92

05/30/92

06/14/92

06/20/92

08/03/92

06/01/92

05/11/92

05/18/92

06/16/92

07/01/92

07/20/92

09/01/92

06/15/92

05 '22 92

06/01/92

06/30/92

07/15/92

07/20/92

09/01/92

07,01 92

06/10/92

06/17/92

07/16/92

07/31/92

08/20/92

10/01/92

07/15,92

06/24/92

07/01/92

07/30/92

08/14/92

08/20/92

10/01/92

08/03/92

07/13,92

07/20/92

08/18/92

09/02/92

09/20/92

1 1/02/92

08/14/92

07/24/92

07/31/92

08/29/92

09/13/92

09/20/92

11/02/92

09/01/92

08/11/92

08/18/92

09/16/92

10/01/92

10/20/92

12/01/92

09/15,92

08/25/92

09/01/92

09/30/92

10/15/92

10/20/92

12/01/92

10 01.92

09,10/92

09/17/92

10/16/92

10/31/92

11/20/92

01/04/93

10,15,92

09 24 92

10/01/92

10/30/92

11/14/92

11/20/92

01/04/93

11/02/92

10/12,92

10/19/92

11/17/92

12/02/92

12/20/92

02/01/93

11 16/92

10/23,92

10/30,92

12/01/92

12/16/92

12/20/92

02/01/93

12/01/92

11/06/92

11/13/92

12/16/92

12/31/92

01/20/93

03/01/93

12/15,92

11/24 92

12/01/92

12/30/92

01/14/93

01/20/93

03/01/93

01/04/93

12,09/92

12/16/92

01/19/93

02/03/93

02/20/93

04/01/93

01/15,93

12/22/92

12/31/92

01/30/93

02/14/93

02/20/93

04/01/93

02,01/93

01/08 93

01/15/93

02/16/93

03/03/93

03/20/93

05/03/93

02/15,93

01/25/93

02/01/93

03/02/93

03/17/93

03/20/93

05/03/93

03/01,93

02 08/93

02/15,93

03/16/93

03/31/93

04/20/93

06/01/93

03 .15 93

02/22/93

03/01/93

03/30/93

04/14/93

04/20/93

06/01/93

04/01/93

03/11/93

03/18/93

04/16/93

05/01/93

05/20/93

07/01/93

04/15,93

03/24/93

03/31/93

04/30/93

05/15/93

05/20/93

07/01/93

05/03/93

04/12/93

04/19/93

05/18/93

06/02/93

06/20/93

08/02/93

05 14 93

04/23,93

04/30/93

05/29/93

06/13/93

06/20/93

08/02/93

06.01 93

05T0/93

05/17/93

06/16/93

07/01/93

07/20/93

09/01/93

06/15/93

05/24 93

06/01/93

06 '30/93

07/15/93

07/20/93

09/01/93

07/01/93

0610 93

06/17/93

07/16/93

07/31/93

08/20/93

10/01/93

07/15/93

06,23,93

06/30/93

07/30/93

08/14/93

08/20/93

10/01/93

08,02,93

07/12/93

07/19/93

08/17/93

09/01/93

09/20/93

11/01/93

08/16/93

07/26/93

08/02/93

08/31/93

09/15/93

09/20/93

11/01/93

09/01/93

08/11/93

08/18/93

09/16/93

10/01/93

10/20/93

12/01/93

09/15/93

08/24,93

08/31/93

09/30/93

10/15/93

10/20/93

12/01/93

10,01/93

09 10 93

09/17/93

10/16/93

10/31/93

11/20/93

01/04/94

10/15/93

09/24/93

10/01 93

10/30/93

11/14/93

11/20/93

01/04/94

11 01 93

10/11/93

10/18/93

11/16/93

12/01/93

12/20/93

02/01/94

11/15/93

10/22/93

10/29/93

11/30/93

12/15/93

12/20/93

02/01/94

12,01/93

110593

11/15/93

12/16/93

12/31/93

01/20/94

03/01/94

12/15/93

11/24/93

12/01/93

12/30/93

01/14/94

01/20/94

03/01/94

* The "Earliest Effective Date" is computed assuming that the agency follows
the publication schedule above, that the Rules Review Commission approves the
rule at the next calendar month meeting after submission, and that RRC delivers
the rule to the Codifier of Rules five (5) business days before the 1st business
day of the next calendar month.

EXECUTIVE ORDER

EXECUTIVE ORDER NUMBER 168

NORTH CAROLINA INTERAGENCY COUNCIL

FOR COORDINATING HOMELESS

PROGRAMS

WHEREAS, the problem of homelessness de-
nies a segment of our population their basic hu-
man need for adequate shelter; and

WHEREAS, several State agencies offer pro-
grams and services for homeless persons. To
combat the problem of homelessness most effec-
tively, it is critical that these agencies coordinate
program development and delivery of essential
services.

Therefore, by the authority vested in me as
Governor by the Constitution and laws of North
Carolina, IT IS ORDERED:

Section 1. ESTABLISHMENT

The North Carolina Interagency Council for
Coordinating Homeless Programs (the "Intera-
gency Council") is hereby established.

Section 2. MEMBERSHIP

The Interagency Council shall consist of the
Deputy Secretary of the North Carolina Depart-
ment of Human Resources and not less than 14
members who shall be appointed by the Secre-
tary of the Department of Human Resources
from the following organizations:

Department of Administration
Housing Finance Agency
Office of State Planning
Department of Community

Colleges
Department of Cultural Resources
Department of Economic and

Community Development
Department of Environment,

Health, and Natural Resources
Department of Human Resources
State Board of Education or its

designee from the Department

of Public Instruction
Department of Insurance
Non- Profit Agency Concerned

with Housing Issues and

the Homeless
Non- Profit Agency Concerned with

the Provision of Supportive

Services to the Homeless
Member of N.C. Senate
Member of N.C. House

TOTAL

Section 3. TERMS OF MEMBERSHIP

The Deputy Secretary of the Department of
Human Resources shall serve on the Interagency
Council during his or her term of employment in
that position. Terms of membership for the
other members of the Interagency Council shall
be staggered so that the terms of approximately
one-half of the members shall expire in a single
calendar year. Terms shall be staggered in the
following manner for the first two years:
7 serving one year
7 serving two years

After the first two years, each appointment shall
be for a term of two years.

Section 4. CHAIR

The Chair of the Interagency Council shall be
the Deputy Secretary of the Department of Hu-
man Resources.

Section 5. MEETINGS

The Interagency Council shall meet quarterly
and at other times at the call of the Chair or
upon written request of at least (5) five of its
members. All business meetings of the Intera-
gency Council, its committees and subcommit-
tees or special task forces shall be open to the
public.

Section 6. FUNCTIONS

The Interagency Council shall have the follow-
ing duties:

1 1. To identify state level programs and services

which address the needs of the homeless.

1 2. To negotiate a definition of specific state

agency responsibilities with regard to ser-

1 vices for the homeless.

1 3. To develop policies and procedures and

interagency memoranda of agreement to:
a. Facilitate sharing of information and

1 resources among involved agencies.

1 b. Facilitate interagency referrals.

c. Reduce and eliminate barriers to service.

d. Target and maximize the effective utiliza-
1 tion of existing resources.

e. Facilitate cost sharing among agencies.
4. To coordinate the provision of information

1 regarding the extent and scope of problems

1 of the homeless in North Carolina for the

1 purposes of planning and implementing

programs and services.

7:7 NORTH CAROLINA REGISTER July 1, 1992

626

EXECUTIVE ORDER

5. To assist agencies in identifying and ob-
taining new sources of funding for the en-
hancement of current programs and services,
and for new programs.

6. To review the current funding of programs
and services to assure:

a. the cost effectiveness of programs and
funding utilization; and

b. the maximum utilization of federal fund-
ing.

7. To prepare an annual report which identifies:

a. the needs of the homeless;

b. the current status of programs and ser-
vices for the homeless;

c. the adequacy of current funding for pro-
grams and services for the homeless;

d. the priorities of state level programs and
services; and

e. recommendations for fiscal, program-
matic, and legislative actions to address
recognized priorities.

Section 7. TRAVEL AND SUBSISTENCE
EXPENSES

Members of the Interagency Council shall re-
ceive necessary travel and subsistence expenses in
accordance with the provisions of G.S. 120-3 1
or 138-5.

Section 8. STAFF ASSISTANCE

The Division of Economic Opportunity of the
Department of Human Resources shall provide
administrative and staff support services required
by the Interagency Council.

Section 9. EFFECTIVE DATE AND
EXPIRATION

This Executive Order shall become effective
immediately and will expire in accordance with
North Carolina law two years from the date it is
signed. It is subject to reissuance at expiration.

Done in the Capital City of Raleigh, this the
29th day of May, 1992.

627

7:7 NORTH CAROLINA REGISTER July I, 1992

IN ADDITION

[G.S. 1 20- 30.9 H, effective July 16, 1986, requires that all letters and other documents issued by the
Attorney General of the United States in which a final decision is made concerning a "change af-
fecting voting" under Section 5 of the Voting Rights Act of 1 965 be published in the North Carolina
Register. /

U.S. Department of Justice
Civil Rights Division

JRD:MAP:EMP:tlb

DJ 1 66-0 1 2- 3 Voting Section

92-1786 P.O. Box 66128

Washington, D.C. 20035-6128

June 9, 1992

Z. Creighton Brinson, Esq.

Taylor & Brinson

P. O. Drawer 308

Tarboro, North Carolina 27886-0308

Dear Mr. Brinson:

This refers to the annexation (Ordinance No. 91-15) to the Town of Tarboro in Edgecombe
County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights
Act of 1965, as amended, 42 U.S.C. 1973c. We received your submission on April 13, 1992.

The Attorney General does not interpose any objection to the specified change. However, we note
that Section 5 expressly provides that the failure of the Attorney General to object does not bar sub-
sequent litigation to enjoin the enforcement of the change. See the Procedures for the Administration
of Section 5 (28 C.F.R. 51.41).

We note that a proper submission of a voting change for Section 5 review should be addressed to
the Chief, Voting Section, Civil Rights Division, P. O. Box 66128, Washington, D.C. 20035-6128.
The envelope and first page should be marked: Submission under Section 5 of the Voting Rights Act.
Transmittal or your correspondence to any other office may delay the processing of your request.

Sincerely,

John R. Dunne

Assistant Attorney General

Civil Rights Division

By:

Steven H. Rosenbaum
Chief, Voting Section

7:7 NORTH CAROLINA REGISTER July I, 1992 628

PROPOSED RULES

TITLE 4 DEPARTMENT OE ECONOMIC
AND COMMUNITY DEVELOPMENT

1\ otice is hereby given in accordance with G.S.
150B-21.2 that the Xorth Carolina Banking Com-
mission intends to amend rule(s) cited as 4
NCAC 3E .0101, .0201, .0302, .0601; repeal
rule(s) cited as 4 NCAC 3E .0106, .0603; adopt
rule(s) cited as 4 NCAC 3E .0204.

1 he proposed effective date of this action is De-
cember 1 , 1992.

I he public hearing will be conducted at 9:00
a.m. on August 11, 1992 at the North Carolina
Banking Commission, 430 North Salisbury Street,
Suite 6210, Raleigh, North Carolina.

IXeason for Proposed Action:
Adoptions:

Subchapter 3E (Consumer Finance)

.0204 Transfer of License and Change

of Location -- This is a new rule. It
provides in Paragraph (a) for transfer
or assignment application in writing
together with a SI 00 fee for each li-
cense. Additionally, it provides that
transfers will not be approved other
than to existing licensees. Paragraph
(b) provides for an application for
change of location and a fee of $25.

Amendments:

Subchapter 3E (Consumer Finance )

.0/01 Application -- Address and

statutory cite changes only.

.0201 Operation of other Business in Same

Office -- This rule has been rewritten
into four Paragraphs: (a) prohibiting
other business without approval, (b)
requiring other loan business to be
conducted in a separate corporate en-
tity, (c) providing for an application
procedure and a fee of $25, and (d)
requiring an other business license to
be posted in public view. It also pro-
vides for address changes and includes
another appropriate statutory cite.

.0302 Annual Report -- This is merely

.0601

Repeals:

address changes and a revision of
statutory cite.

Books and Records -- Subpart (3)
dealing with "Individual Account Re-
cords" has been revised to require
disclosure of the cash advance and fi-
nance charges, require a/location of
payments between principal and inter-
est, identification of insurance origi-
nation fees and the amount of
insurance premiums on consumer fi-
nance loans, identification of non-
filing insurance charges, and
disclosure of the contract interest rate
and the annual percentage rate
(APR) as computed under Regulation
Z. Also, a new subpart (5) requires
a statement on the loan contract which
identifies the loan as one regulated by
the provisions of Chapter 53, Article
15 of the North Carolina General
Statutes. It does allow a transition
period for compliance. A new subpart

(6) requires detailed judgments to be
maintained in the local office for
judgment accounts and a new subpart

(7) requires substantially the same
information to be kept in a local office
for repossession accounts. Finally, a
new subpart (8) requires certain re-
cords to be maintained on insurance
claims.

Rule .0601 has also been revised to
adopt modern accounting terminology
and recognize the authority of
licensees to maintain their records by
means of electronic storage and re-
trieval systems.

Subchapter 3E ( Consumer Finance)

.0106 Motor Vehicle Lenders —
Repealed.

.0603 Deferment Charges -- Repealed.

V^ omment Procedures: Comments must be sub-
mitted in writing not later than Friday, August 7,
1992. Written comments should be directed to:
L. McNeil Chestnut, General Counsel
North Carolina Banking Commission

Post Office Box 29512
Raleigh, North Carolina 27626-0512

CHAPTER 3 - BANKING COMMISSION

629

7:7 NORTH CAROLINA REGISTER July I, 1992

PROPOSED RULES

SUBCHAPTER 3E - LICENSEES UNDER

NORTH CAROLINA CONSUMER FINANCE

ACT

SECTION .0100 - LICENSING

0101 APPLICATION

(a) No person shall make loans under the pro-
visions of the North Carolina Consumer Finance
\ct without first obtaining a license from the
Commissioner of Banks. Application for a con-
sumer finance license shall be accomplished by
he execution of Form NCCF 2 and the payment
f the statutory fee. That form contains a re-
quest for a license to operate a business under the
North Carolina Consumer Finance Act and in-
:orporates all statutory requirements and criteria.
The form may be obtained from and should be
filed with:

The Commissioner of Banks

Raloigh, North Carolina 37602.

Post Office Box 29512

Room 6210, Dobbs Building

430 North Salisbury Street

Raleigh, North Carolina 27626-0512.

(b) Upon receipt of an application for a con-
sumer finance license, the Commissioner of
Banks shall give written notice of the application
to all licensees operating within the community
proposed to be served as described in the appli-
cation. Where a licensee holds two or more li-
censes the notification is to be mailed to the
home office of such licensee. The notification
may be by copy of acknowledgement to the ap-
plicant.

(1) approval of the application,

(2) denial of the application.

Statutory Authority G.S. 53-92; 53-95; 53-104;
53-168; 53-185; 150B-21.2.

.0106 MOTOR VEHICLE LENDERS

A motor vohiclo lender, a* defined by G.S.
^3 176.1, mur . t be licensod b¥ the Commissioner

ef Banks i» the same manner a* proscribed m
Rulo .0101 »f this Suction. Appropriate forms
afi4 instructions incorporating aU statutory i=e-

*J ""vrrrCTTTTT UJ 1U VI 1 1 VI TTT CTCTT L' V \J \. ■ I UI 1 11~TJ rTTTTTT III IU

should be ftlea with:

: Phe Commissioner t»f Banks
Raloigh, North Carolina 27602.

Statutory Authority G.S. 53-92; 53-176.1;
53-185; 150B-11(1).

SECTION .0200 - ACTIONS REQUIRING
APPROVAL OF COMMISSIONER OF BANKS

.0201 OPERATION OF OTHER

BUSINESS IN SAME OFFICE

(a) No licensee shall operate any other business
in the same office oxoopt as shall be approved »
writing by with its consumer finance business
except upon written approval of the Commis-
sioner of Banks. A requ e st fop ouch approval
shall be mad e by the execution ef Form NCCF
$ a«4 the payment ef the statutory inv e stigation
lee? That form contains a request te- operate the
business ef- making loans under the Consumer
Finance Aet- i» the same offic e some other busi
ness is solicited »f ongagod »t The

(b) Any other loan business conducted at the
same location where a licensee makes loans pur-
suant to Chapter 53, Article 15 of the North
Carolina General Statutes, must be operated
through a separate corporate entity.

(c) Application for other business authority
shall be made upon Form NCCF 5 and shall be
accompanied bv a fee of one hundred dollars
($100.00). An NCCF 5 form can be obtained
from and should shall be filed with:

The Commissioner of Banks

12,0, Bo* 0*4-

Raloigh, North Carolina 27602.

Post Office Box 29512

Room 6210, Dobbs Building

430 North Salisbury Street

Raleigh, North Carolina 27626-0512.

(d) Upon approval of the application, the
Commissioner of Banks will issue a Certificate
of Authority which shall be posted in a public
area of a licensee's office.

Statutory Authority G.S. 53-92; 53-122(3);
53-168; 53-172; 53-185; 150B-21.2.

.0204 TRANSFER OF LICENSE

AND CHANGE OF LOCATION

(a) Transfer or assignment. Before a licensee
may transfer or assign its license to another en-
tity, the licensee shall apply to the Commissioner
of Banks for authority to do sex Application
shall be bv letter which shall set forth the name.

address and telephone number of the proposed
transferee or assignee, the reasons tor the transfer
or assignment and the date upon which the
licensee proposes to make the transfer or assign-
ment. The application letter shall also be ac-

7:7 NORTH CAROLINA REGISTER July I, 1992

630

PROPOSED RULES

companied by a fee of twenty five dollars
($25.00) payable to the Commissioner of Banks
for each license proposed for transfer or assign-
ment together with written acknowledgement of
the proposed transaction by the transferee or
assignee. Transfer or assignments to other than
existing licensees will not be approved. If the
application is approved, the licensee shall imme-
diately surrender to the Commissioner of Banks
its consumer finance license for reissuance to the
transferee or assignee.

(b) Change of Location. Prior to any change
in the business location of a licensee, the licensee
shall apply to the Commissioner of Banks for
authority to do so. Application shall be by letter
setting forth the address and telephone number
of the new location and shall be accompanied by
a fee of twenty five dollars ($25.00) payable to
the Commissioner of Banks. If the application
is approved, the licensee shall immediately sub-
mit to the Commissioner of Banks its license for
amendment.

Statutory Authority G.S. 53-122(3); 53-I68(e);
53-170(a); 150B-21.2.

SECTION .0300 - REPORTS REQUIRED BY
COMMISSIONER OF BANKS

.0302 ANNUAL REPORT

Each licensee under the North Carolina Con-
sumer Finance Act shall file an annual report
with the Commissioner of Banks on or before
March 31 each year. Such report shall be filed
on Form NCCF 1. That form contains various
schedules which reflect the financial condition of
the licensee as well as the results of its operations.
The form along with necessary instructions rela-
tive to its execution may be obtained from and
should be filed with:

The Commissioner of Banks

Raleigh, North Carolina 27602.

Post Office Box 29512

Room 6210, Dobbs Building

430 North Salisbury Street

Raleigh, North Carolina 27626-0512.

Statutory A uthoritv
53-185; 150B-21.1.

G.S. 53-92; 53-184(b);

SECTION .0600 - CONSUMER FINANCE
OFFICES

.0601 BOOKS AND RECORDS

Each consumer finance office licensed by the
Commissioner of Banks shall keep in its place
of business the following books and accounting

records, (see exception in Item "2," General
Ledger) These records shall be maintained in
each office and be readily available to the Com-
missioner of Banks or his authorized agent. No
books or records of the licensee may show any
account or reflect any transaction other than
those directly related to the making and collecting
of loans within the provisions of the Consumer
Finance Act.

Where a licensee is also an installment paper
dealer, completely separate books and records
shall be maintained, including a separate cash
account. Allocation of expenses shall be made
monthly according to appropriate and reasonable
accounting principles.

All books and records covered by these rales
must be retained for a period of not less than
three years:

(1) Cash Book. The cash book shall be the
book of original entry in which all trans-
actions of receipts and disbursements of any
nature or amount whatsoever shall be item-
ized. Each transaction made in connection
with a loan shall be identified with the loan
by the name and account number of the
borrower and shall clearly define the nature
of each charge, collection, or refund made in
connection with such loan. All entries shall
be made as of the exact date the transactions
occur.

(2) General Ledger. The general ledger shall
be double entry, showing in full detail the
total of assets, liabilities, capital, income,
and expenses. Each account shall be clearly
and appropriately designated. No net or
"wash" entries shall be made to any ac-
count. The general ledger shall be posted
at least once each month and such posting
shall include all transactions through the last
business day of the month. The actual
posting must be completed by the 20th day
of each ensuing month for the previous
month's business. In instances where an
organization operates two or more offices,
the general ledger may be maintained in a
central accounting office of the organization,
provided a certified trial balance shall be
made as of the last business day of each
month and shall be on file in each office
within 20 days from that time. Each debit
or credit entry appearing on the general led-
ger each month shall appear on the trial
balance. A detailed description of each
general ledger entry originating outside of a
local office and not reflected on the cash
book of that office shall be on fde in each
office to support such entries appearing on
the general ledger. This shall include ad-

631

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

justing and closing entries. If any account
on the general ledger does not agree with the
corresponding account on the annual report
to the Commissioner of Banks, a supple-
ment to the annual report shall be furnished
which reconciles or explains any differences.
(3) Individual Account Card. A separate ac-
count card shall be maintained for each loan
made. Each account card shall provide the
following information which may be shown
on the front or back of the account card:

(a) name and address of borrower, spouse's
name, and name of any other person ob-
ligated directly or indirectly on the loan;

(b) cross reference to other loans of the bor-
rower, or spouse, or endorser, guarantor,
or surety, or to any joint obligation of the
borrower;

(d) date of loan and maturity;

(e) length of contract;

(f) the cash advance, finance charge, number

of payments and amount of each;

(g) date and amount of each payment, a*4
each dofault charg e oollooted; an allo-
cation between principal and interest for
each payment, and the remaining loan
balance after each payment;

(h) date of previous loan;
(i) brief description of security;
(j) amount ef- charge;

(j) £k} type of insurance, aft4 amount ef- p*e-

miums; insurance origination fees and

amount of insurance premium for each

coverage written;

(k) (ty amount of recording fee or non-tiling

charges;
(1) (ft*) amount of any other charge whatsoever

made in connection with the loan;
(m) (ft) amount of refund; unearned insurance
premium refunded for each coverage
written;
(n) (^) if refunds are paid by cash or check,
acknowledgment of receipt of refund by
signature of borrower; and
(o) contract interest rate and annual percent-
age rate as computed under Regulation
Z.
(4) Index of Borrowers. Each office shall keep
an index record on which all loans to each
individual shall be entered in order, showing
date made, account number, amount of
loan, and date of cancellation. This record
shall be maintained on individual index
cards or on the face of the borrower's indi-
vidual file, "shuck," "jacket," or folder and
shall be filed alphabetically or by account

number, provided where the account num-
ber is used an alphabetical cross index be
available to the examiner.

(5) Loan Documents. Loans made by a
licensee shall on the loan contract contain
the following statement printed in a con-
spicuous manner: Lhis loan is regulated
by the provisions of Chapter 53, Article 15
of the North Carolina General Statutes."

(6) Judgments. When a loan has been reduced
to judgment, all of the following provisions
shall be complied with:

(a) the individual account card maintained
pursuant to Subpart (3) of this Rule shall
clearly be designated a judgment account;

(b) payments received shall be identified and
applied on the judgment account card;

(c) the licensee shall maintain in the office
from which the judgment account origi-
nated a copy of the judgment and any
other court documents which are neces-
sary' to disclose the following information:

(i) judgment date;

(ii) name of licensee;

(iii) judgment debtor's name;

(iv) date suit was filed;

(v) nature of the suit;

(vi) name and location of the court;

(vii) amount of the judgment, specifying

principal, interest charges, and court costs;

and
(viii) disposition of the case;

(d) a licensee which charges a borrower for
court costs it incurred on a judgment ac-
count shall itemize such costs on the in-
dividual account card and retain a receipt
or other document substantiating the
costs;

(e) a licensee shall retain a copy of the sheriff's
return of execution issued when property
is sold pursuant to a judgment.

(7) Repossessions. When property is taken in
accordance with the terms of a security
agreement or by judicial process or aban-
donment, the individual account card shall
be clearly designated as a repossession ac-
count and shall state when and how pos-

session of the security was obtained and
shall identify the proceeds of the sale ot the
property. The licensee shall also retain in
the office in which the repossession account
originated, all of the following:

(a) a copy of any agreement entered into with
the borrower with respect to the terms of
surrender;

(b) a copy of the notice of sale, together with
evidence of mailing or personal delivery;

7:7 NORTH CAROLINA REGISTER July 1, 1992

632

PROPOSED RULES

a signed statement from the purchasers,
or from the auctioneer if the sale was
public, describing the collateral purchased
and showing the amounts paid;
evidence that the sale took place on the
date set forth in the notice of sale, includ-
ing a notice of anv bids received;

Id]

(e)

(f) copy of a detailed final accounting sent to
the borrower setting forth the disposition
of the proceeds of sale and the principal
balance due, if any, on the account; and

paid receipts evidencing costs incurred in

the repossession and sale of the security

which have been charged to the borrower.

(8) Insurance Records. A licensee shall main-

tain in each office where a loan account
originated, a record of any claims paid under
insurance written in connection with a con-
sumer finance loan. The records shall in-
clude:

(a) the loan number and name of debtor;

(b) description of the insurance claim, i.e.,
whether death claim, property damage, or
claim for benefits under accident and
health insurance; and

of the certified death cer-

tificate.

Statutory Authority G.S. 53-92; 53-104; 53-184;
53-185; 150B-21.2.

.0603 DEFERMENT CHARGES

If the contract se provided, aed the payment
dates ©I ail wholly unpaid installments ase de-
ferred fef ©«e ©f- mora foil months. a»d the ma-
turity date ef the contract is extended fop a
corresponding period, the licensee may charge
a«4 collect a dofoimont charge.

"4-he deferment charge shall m»t exceed the dif-
fer e nce between the refund that would be Fe-
quired und e r the "rule ef 78'o" ef sem el the
digits principle fof prepayment m foe a* ©I the
scheduled dee date ©I the fost deforrod install
ment aftd the r e fund which would be required fof
prepayment m foil a* el ©fte month prior te such
date, multiplied by- the Mim el the number ©I
months m which »© scheduled payment ha* been
made aftd m which »e payment is t© he required
by- r e ason el the d e f e rment. ?4*e charge fof sub
s e quent defennento » the sam e contract shall be
computed m the same manner, provid e d the
charge is based ©«■ the fost installment el such
subsequent d e f e rment.

A deferment charge may be collected at the time
el defermen t ef at aey time thoroaftor.

Ne installment which has boon partially paid
©f e» which a default charge , has boon madeshaH
be deferred ©f included m the computation el a
dofonnent ohargo unlooo the partial paymen t m
d e fault charge is rofundod te the borrowor e*
credited te the dofoimont chargo.

If eee ©f more installment o afe m default aed a
deferment chargo is deducted from a tondorod
payment and- as a rooult the account is mado
curront, a»y differ e nce between the amount paid
aftd the amount el the deferment ohargo, il moro
than foe dollars ($5.00), shall be rofundod te the
borrower; provided, aey uncoil ectod default ef
d e ferment charges previously dee may be de-
ducted.

II a deferm e nt is imposed without the borrow
efts consent, then the number el months m the
dofoimont p e riod shall set oxoocd the numbor el
installments m default.

If the amount el payment t e nder e d is sufficient

♦ ■ a «-~t ■ ■ i - *b,i fi.'.Tfii int I i f-t t .~\ - ' " * 1 1 ini'liiflinn n .-»,--.-i in^

rrr l. 1 u t uil u i_^_'v^ uiii i_i lj r^r uun , 11 iv^i uvjuttt ck^^^hcts

d e fault charg e s, »e deferment chargo may- be as-
sessed except upon written request el the bef-
rower.

ttte borrower shall be advised by- the liconooo,
m writing, el e ach deferment including the
amount el the defermen t charge, the dee date^
ae4 amount el the next scheduled installment,
aftd the amount el the unpaid balanoo.

II a loan contract is pr e paid during a d e f e rmen t
period, the refund el charges must include the
portion ©I the deferment chargo applicable te aay
month ©I the deferment period m which less tba»
44 days have expired. ¥e arrive at the proper
amount ©I refund ftfst detormino the amount the
r e fund would hav e boon il the deferment had Bet

V-\ . >. >r\ jn- ■ | rt t . -h . i ' \ n . i t^^^^ I ,--\ '-i r\ i \ I —i .- r^ * i ■ , \ \ ri t ■ » J t Qn ^^^
l_ ' ^ V~ 1 1 EI CO 1 EvO CO EO CXXD IL'UII *T UJ L'UJU 111 1 CR3 *-MI HIV

dae date el the last installment which was paid.
^fe- this amount must be added the deformont
ohargo applicable te each month m the deformont
period » which less than 14 days have expired.

I ill? QTS 1 1 1 ( *f t I lt™^T t^TTT T*t* 1 1 [ V I \ 1 1 T. J t CfTTTTTTTTTT ITT 1 O

1 1 i n n ■ i i < ~»
I LI 1 1U U BD -

If there is a prepayment ©I a loan » fell subso
quont t© the deferment p e riod, the total charg e
refund may- be basod ©» the contract's original
add on chargo, provided the number ©I prepaid
leae months shall be based e» the deferr e d ma-
turity date. When the refund t% basod ©ft the
number ©I me elapsed months rathor thaft the
number ©I prepaid months, the numb e r ef
elapsed month ■• mest be reduced by eee month
l©f eaeh month ©ft which a deferment charg e has
been made.

633

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

Statutory Authority G.S. 53-92; 53- 1 04;
3-173(6); 53-185.

TITLE 10 DEPARTMENT OF HUMAN RESOURCES

*N otice is hereby given in accordance with G.S. 150B-2I.2 that the Division of Facility Services (DHR)
ntends to adopt rules cited as 10 NCAC 3R .3001, .3010, .3020, .3030 and .3040.

I he proposed effective date of this action is November I, 1992.

L he public hearing will be conducted at 2:00 p.m. on September 9, 1992 at the Council Building. Room
'01, 701 Barbour Drive, Raleigh, NC.

IXeason for Proposed Action: To establish the State Medical Facilities Plan as a ride.

^ omment Procedures: Written comments should be submitted as soon as possible but no later than
eptember 2, 1992, to Jackie Sheppard, APA Coordinator, Division of Facility Services, P.O. Box 29530,
Weigh, NC 27626-0530, Telephone (919) 733-2342.

Cidito/s Note: These Rules have been filed as temporary rules effective May 31, 1992 for a period of
80 days to expire on October 31, 1992.

CHAPTER 3 - FACILITY SERVICES

SUBCHAPTER 3R - CERTIFICATE OF NEED REGULATIONS

SECTION .3000 - STATE MEDICAL FACILITIES PLAN

.3001 CERTIFICATE OF NEED REVIEW CATEGORIES

The agency has established nine categories of facilities and services for certificate of need review and
vill determine the appropriate review category or categories for all applications submitted. For pro-
'osals which include more than one category, the agency will require the applicant to suhmit separate

pplications. If it is not practical to submit separate applications, the agency will determine in which

ategory the application will be reviewed. The review of an application for a certificate of need will

ommence in the next review schedule after the application has been determined to be complete. The

line categories of facilities and services are:

(1) Category- A. Includes proposals for acute health service facilities including but not limited to the
following types of projects: renovation, construction, major medical equipment and other ancil-
lary and support equipment and services, except those proposals included in Categories B through
L

(2) Category B. Includes proposals for long-term nursing facility beds which are reviewed against the
State Medical Facilities Plan.

(3) Category C. Includes proposals for new psychiatric facilities; psychiatric beds in existing health
care facilities; new intermediate care facilities for the mentally retarded (ICF/MR) and ICF MR
beds in existing health care facilities except for special allocation of ICF MR beds for only Thomas
S^ class members; new substance abuse and chemical dependency facilities; substance abuse and
chemical dependency beds in existing health care facilities.

(4) Category' D. Includes proposals for new or expanded end-stage renal disease treatment facilities;
and relocations of existing dialysis stations.

(5) Category E. Includes proposals for new or expanded inpatient rehabilitation facilities and inpa-
tient rehabilitation beds in other health care facilities.

(6) Category J\ Includes proposals for new or expanded ambulatory surgical facilities.

(7) Category G. Includes proposals involving cost overruns; addition of one dialysis station for iso-
lation of patients; expansions of existing continuing care or life care facilities which are applying
under exemptions from need projections in the Plan; relocations of existing health service facilities
which do not involve an increase in the number of health service facility beds; with the exception

7:7 NORTH CAROLINA REGISTER July 1, 1992 634

PROPOSED RULES

of relocating dialysis stations; reallocation of beds due to withdrawals or relinquishments of cer-
tificates of need; hospital proposals to convert acute care beds to short-term nursing; proposals
subrrutted by Academic Medical Center Teaching Hospitals designated prior to January L 199Q;
and any other proposal not included in Categories A through Fj Category H, or Category 1. ~

(8) Category H. Includes proposals for demonstration projects identified in this Plan; special allo-
cation of 1CF MR beds for Thomas S. class members only. " "

(9) Category 1 Includes proposals for new continuing care or life care facilities and new home health

agencies or offices.

Statutory Authority G.S. I3IE-176(25); I31E-177(l); 131E-183(1).

.3010 HEALTH SERVICE AREAS

The agency has assigned the counties of the state to the following health service areas for the purpose
of scheduling applications for certificates of need:

HEALTH SERVICE AREAS (HSA)

III

County

Alexander

Alamance

Cabarrus

Chatham

Anson

Beaufort

Alleghany

Caswell

Gaston

Durham

Bladen

Bertie

Ashe

Davidson

Iredell

Franklin

Brunswick

Camden

Avery-

Davie

Lincoln

Granville

Columbus

Carteret

Buncombe

Forsyth

Mecklenburg

Johnston

Cumberland

Chowan

Burke

Guilford

Rowan

Lee

Harnett

Craven

Caldwell

Randolph

Stanly

Orange

Hoke

Currituck

Catawba

Rockingham Union

Person

Montgomery

Dare

Cherokee

Stokes

Vance

Moore

Duplin

Clay

Surry

Wake

New Hanover

Edgecombe

Cleveland

Yadkin

Warren

Pender

Gates

Graham

Richmond

Greene

Haywood

Robeson

Halifax

Henderson

Sampson

Hertford

Jackson

Scotland

Hyde

McDowell

Jones

Macon

Lenoir

Madison

Martin

Mitchell

Nash

Polk

Northampton

Rutherford

Onslow

Swain

Pamlico

Transylvania

Pasquotank

Watauga

Perquimans

Wilkes

Pitt

Yancey

Tyrrell
Washington
Wayne
Wilson

Statutory Authority G.S. 131E-I76(25); 13IE-177(l); I31E-183(I).

.3020 CERTIFICATE OF NEED REVIEW SCHEDLLE

1 he .igene\ has established the following schedule for review of categories and subcategories of facjh-
ties and services in 1992:

( 1) Category B. Subcategory Long-Term Nursing Facilities.

635

7:7 NORTH CAROLINA REGISTER July I, 1992

PROPOSED RULES

CON Beginning

County

HSA

Review Date

Alleghany

February 1, 1992

Cleveland

February 1, 1992

Polk

February 1, 1992

Burke

August 1, 1992

Jackson

August 1, 1992

Alamance

February 1, 1992

Caswell

February 1, 1992

Rockingham

February 1, 1992

Davie

August 1, 1992

Yadkin

August 1, 1992

Mecklenburg

III

March 1, 1992

Stanly

III

September 1, 1992

Chatham

March 1, 1992

Person

March 1, 1992

Wake

September 1, 1992

Warren

September 1, 1992

Cumberland

April 1, 1992

Moore

April 1, 1992

Robeson

April 1, 1992

Scotland

April 1, 1992

Bladen

October 1, 1992

New Hanover

October 1, 1992

Beaufort

April 1, 1992

Nash

Apnl 1, 1992

Northampton

April 1, 1992

Craven

October 1, 1992

Hertford

October 1, 1992

Pamlico

October 1, 1992

Wilson

October 1, 1992

(2) Category C. Subcategory Intermediate Care Facilities for Mentally Retarded.

CON Beginning

Counties

HSA

Review Date

Jackson, Haywood, Macon

Cherokee,

Clay

December 1, 1992

Graham, Swain

Transylvania, Henderson

December 1, 1992

Caldwell, Burke, Alexander

McDowell

December 1, 1992

Rutherford, Polk

June 1, 1992

Cleveland

June 1, 1992

Mecklenburg

111

May 1, 1992

Surry, Yadkin

June 1, 1992

Forsyth, Stokes

June 1, 1992

Alamance, Caswell

November 1, 1992

Orange, Person, Chatham

May 1, 1992

Vance, Granville, Franklin,

Warren

November 1, 1992

Davidson

November 1, 1992

Cumberland

December 1, 1992

Johnston

May 1, 1992

7:7 NORTH CAROLINA REGISTER July 1, 1992

636

PROPOSED RULES

Counties

HSA

CON Beginning
Review Date

Wake

November 1, 1992

Randolph

New Hanover, Brunswick, Pender

II
V

November 1, 1992
December 1, 1992

Onslow

June 1, 1992

Wilson, Greene

June 1, 1992

Edgecombe, Nash

June 1, 1992

Hertford, Bertie, Gates, Northampton

December 1, 1992

Pasquotank, Chowan, Perquimans, Camden,
Dare, Currituck

December 1, 1992

(3) Category D. Subcategory Fnd Stage Renal Disease Treatment Facilities.

CON Beginning

Counties

HSA

Review Date

Cherokee, Clay, Graham, Jackson, Macon, Swain

April 1, 1992

Buncombe, Haywood, Madison, Mitchell, Yancey

October 1, 1992

Henderson, Polk, Transylvania

October 1, 1992

Ashe, Avery, Caldwell, Watauga, Wilkes

April 1, 1992

Burke, McDowell

October 1, 1992

Rutherford

April 1, 1992

Alexander, Catawba

October 1, 1992

Alleghany, Stokes, Surry

October 1, 1992

Davidson

October 1, 1992

Caswell, Rockingham

October 1, 1992

Randolph

Apnl 1, 1992

Alamance

April 1, 1992

Gaston

111

May 1, 1992

Lincoln

III

May 1, 1992

Rowan

III

October 1, 1992

Cabarrus

III

October 1, 1992

Montgomery, Stanly

111

October 1, 1992

Chatham, Lee

October 1, 1992

Person

May 1, 1992

Wake

October 1, 1992

Johnston

October 1, 1992

Franklin, Vance, Warren

May 1, 1992

Anson

August 1, 1992

Cumberland, Hoke

Apnl 1, 1992

Harnett

April 1, 1992

Sampson

Apnl 1, 1992

Bladen

August 1, 1992

Robeson

August 1, 1992

Pender

August 1, 1992

Brunswick

August 1, 1992

Duplin

April 1, 1992

Wayne

April 1, 1992

Fdgecombe, Nash

April 1, 1992

Gates, Halifax, Hertford, Northampton

August 1, 1992

Bertie, Washington

August 1, 1992

Martin

April 1, 1992

637

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

Counties

HSA

CON Beginning
Review Date

Greene, Pitt

Beaufort

Carteret, Craven, Jones, Pamlico

Onslow

VI
VI
VI
VI

August 1, 1992

(4) Category I. Subcategory Home Health Agencies.

County

HSA

CON Beginning
Review Date

Mecklenburg

Randolph

Wilkes

III
II
I

February 1, 1992
April 1, 1992
April 1, 1992

'5) All categories for which review dates are not specified in Subparagraph (1), (2), (3), (4) of this

Rule. ~~'~" ~~ " ~" " ~" ~ "

REVIEW
PERIOD

HSA I

HSA II

HSA III

HSA IV

HSA V

HSA VI

January 1
February 1
March 1
April 1
May 1
June 1
July 1
August 1
September 1
October 1
November 1
December 1

B,G

A,D,G,F

A,C,G,E

B,G

D,G,F

A,C,G,E

B,G

A,D,G,F

A,C,G,E

B,G

D,G,F
A,C,G,E

A,D,G,F
B,G,

C,G,E

A,D,G

B,G,F

A,C,G,E

A,D,G,F
B,G

C,G,E

A,D,G

B,G,F

A,C,G,E

A,D,G,F

B,G

A,C,G,E

D,G,F

B,G

A,C,G,E

A,D,G,F

B,G

A,C,G,E

D,G,F

B,G

A,C,G,E

Statutory Authority G.S. 131E-176(25); 131E-I77(I); I31E-I83(1).

3030 FACILITY AND SERVICE ALLOCATIONS

Facility and services allocations are:

(1) Category A. Acute Health Service Facilities.
Morehead Memorial Hospital Service System
Halifax Memorial Hospital Service System
UNC Hospital Service System

HSA II

16 beds

HSA VI 17 beds

HSA IV 15 beds (University students)

(2) Category B. Long-Term Nursing Facility Beds.

County

HSA

Number of Nursing
Beds Allocated

Alleghany
Cleveland
Polk

20
60

7:7 NORTH CAROLINA REGISTER July I, 1992

638

PROPOSED RULES

Number of Nursing

County

HSA

Beds Allocated

Burke

Jackson

Alamance

Caswell

Rockingham

Davie

Yadkin

Mecklenburg

III

11)0

Stanly

III

Chatham

Person

Wake

Warren

Cumberland

Moore

Robeson

Scotland

Bladen

New Hanover

100

Beaufort

Nash

Northampton

Craven

Hertford

Pamlico

Wilson

(3) Category C.

(a) Psychiatric Facility Beds.

BEDS

Counties

HSA

Adult

Child Adolescent

Transylvania, Henderson

Gaston, Lincoln

III

Rowan, Iredell, Davie

III

Stanly, Cabarrus, Union

III

Surrv, Yadkin

—

Rockineham

Vance, Granville, Franklin,

Warren

Davidson

Lee, Harnett

Wake

Craven, Jones, Pamlico,

Carteret

Lenoir

Beaufort, Washington,

—

Tyrrell, Hyde, Martin

639

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

(b) Intermediate Care Facilities for Mentally Retarded Beds.

Counties

HSA

Allocation

Jackson, Haywood, Macon, Cherokee,

Clay, Graham, Swain

Transylvania, Henderson

Caldwell, Burke, Alexander, McDowell

Rutherford, Polk

Cleveland

Mecklenburg

Surry, Yadkin

Forsyth, Stokes

Alamance, Caswell

Orange, Person, Chatham

Vance, Granville, Franklin, Warren

Davidson

Cumberland

Johnston

Wake

Randolph

New Hanover, Brunswick, Pender

Onslow

Wilson, Greene

Edgecombe, Nash

Hertford, Bertie, Gates, Northampton

Pasquotank, Chowan, Perquimans,

Camden, Dare, Currituck

Facility

Beds. No allocation.

(4) Category D. End Stage Renal Disease Treatment Facilities.

Allocation If

All Pending

Counties

HSA

Are Approved

Cherokee, Clay, Graham, Jackson,

Macon, Swain

Buncombe, Haywood, Madison, Mitchell,

Yancey

Henderson, Polk, Transylvania

Ashe, Avery, Caldwell, Watauga, Wilkes

Burke, McDowell

Rutherford

Alexander, Catawba

Alleghany, Stokes, Surry-

Davidson

Caswell, Rockingham

Randolph

Alamance

Gaston

III

Lincoln

III

Rowan

III

7:7 NORTH CAROLINA REGISTER July 1, 1992

640

PROPOSED RULES

Allocation If

All

Pending

Counties

HSA

Are

Approved

Cabarrus

III

Montgomery, Stanly

III

Chatham, Lee

Person

Wake

Johnston

Franklin, Vance, Warren

Anson

Cumberland, Hoke

Harnett

Sampson

Bladen

Robeson

Pender

Brunswick

Duplin

Wayne

Edgecombe, Nash

Gates, Halifax, Hertford, Northampton

Bertie, Washington

Martin

Greene, Pitt

Beaufort

Carteret, Craven, Jones, Pamlico

Onslow

(5) Category F^ Inpatient Rehabilitation Facility Beds.
HSA Beds

I
Tl

4
20

22
35

(6) Category F. Ambulatory Surgery Facilities.

Any area's need is determined by applying the following formula:

1990 Amb. Surg. Cases in

the Proposed Amb. Surg. Area or 50.9

Area Population (1 OOP's)

Projected Ambulatory Surgical
Cases in Proposed Service Area

U' 1 "! 'uhcs per room per year)

1994 Pop.
of .Area to
be Served

(1 OOP's)
divided bv .80

Proposed 4mb. Su
_ Cases in Pro po sec

Service Area

■Ambulatory' Surgei

Rooms Needed ii

Proposed Service A

This methodology is not applicable to CON ambulatory surgical applications which conform to
10 NCAC 3R .21 15(c)(2) relative to access to medically underserved persons.

(7) Category II. Brain Injury Demonstration - Long-Term Nursing Facility Beds.

641

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

(a] HSA I and III 20 beds

(b] HSA II, IV and V, 20 beds
(less Bladen, Brunswick, Chowan

New Hanoever, Pender and Sampson
counties.)

(c] HSA VI 20 beds
(plus Bladen, Brunswick, Chowan,

New Hanover, Fender and Sampson
counties.)

(8) Category B - Demonstration Project, Medically Complex Children ; Long-Term Nursing Beds.
All HSAs 10 beds

(9) Category G. Thomas S. class - Intermediate Care Facility beds for Mentally Retarded.
All HSAs 71 beds

(10) Category I. New Home Health Agencies.

Number of Agencies
County HSA Allocated

Mecklenburg III 1

Randolph II 2

Wilkes I 1

Statutory Authority G.S. 131E-176(25); 131E-177(I); 131E-183(1).

3040 REALLOCATIONS, ADJUSTMENTS, AND ALLOCATION AVAILABILITY

'a) Reallocations resulting from withdrawals, relinquishments, or no applications.

(1) An allocation for which a certificate of need is issued, but is subsequently withdrawn or relin-
quished, and an allocation for which no certificate of need application is received, is available for
a review period to be determined by the Certificate of Need Section, but beginning no earlier
than 60 days from:

(A) the last date on which the holder of a certificate of need could have appealed a notice of intent
to withdraw his certificate, if he does not in fact appeal;

(B) the date on which an appeal is finally resolved against the holder;

(C) the date that the Certificate of Need Section receives notice from the holder of the certificate
of need that the certificate has been voluntarily relinquished; or

(D) For allocations for which no application was received, the last due date on which applications
could have been received.

Notice of the reallocation and the review period for which applications shall be submitted to
whom will be given no less than 45 days prior to the due date for receipt of the new applications.

(2) Reallocation of service capacity represented bv a relinquished or withdrawn certificate of need
or bv an allocation for which no application was received will occur only to the extent of the
need indicated for the same service contained in this Section in effect at the time of such deter-
mination, as adjusted through the provisions of Paragraph (b) of this Rule. The effective date
of the determination of the availability of capacity for reallocation is the date designated in Parts
(a)(1)(A), (B). (C) or (D) of this Rule.

(3) Reallocations made available through this policy for which no application is received for the
review period designated in Subparagraph (a)( 1) of this Rule will not be reallocated again.

(b) Need adjustments for prior year certificate of need awards. Need determinations in this section
are based on an inventory' of facilities that existed and of certificates of need awarded prior to prepara-
tion of this Plan and will be adjusted bv the amount of any subsequent certificate of need awards. A

7:7 NORTH CAROLINA REGISTER July I, 1992 642

PROPOSED RULES

record of capacity remaining available for allocation will be maintained by the Medical Facilities Plan-
ning Section, based upon information supplied bv the Certificate of Need Section. For information
about the availability of these allocations write Medical Facilities Planning Section, Division of Facility
Services. P.O. Box 29530, Raleigh, NC 27626-0530, or call 919-733-4130.

(c) Availability of Plan Allocations. Single-month review specific allocations in this Plan are available
only for the review cycles specified in j_0 NCAC 3R .3020(1), (2), (3) and (4) and in the next-occurring
scheduled certificate of need review cycle applicable to the same facility service category for the health
service area in which the county or counties are located, as specified in K) NCAC 3R .3020(5). Allo-
cations which are not single-month review specific are available only for the certificate of need review
cycles specified in 10 NCAC 3R .3020(5).

Statutory Authority G.S. I31E-176(25); 131E-177(l); 131E-I83(1).

TITLE 1 1 - DEPARTMENT OF
INSURANCE

i V otice is hereby given in accordance with G.S.
150B-21 .2 that the N.C. Department of Insurance
intends to amend rule(s) cited as 1 1 NCAC 8
.0602.

1 he proposed effective date of this action is Oc-
tober I, 1992.

1 he public hearing will be conducted at 10:00
a.m. on July 23, 1992 at the Code Officials Qual-
ification Board, 410 N. Boylan Avenue, Raleigh,
N.C. 27611.

INeason for Proposed Action: To extend the
probationary certificate for fire inspectors only
due to courses not being available at the time of
original certification.

omment Procedures: Written comments may
be sent to Grover Sawyer, c'o Qualifications
Board, P.O. Box 26387, Raleigh, N.C. 27611.
Oral presentations may be made at the public
hearing. Anyone having questions should call
Grover Sawyer at (919) 733-3901 or Ellen
Sprenkelat '(919) 733-4529.

probationary certificate is issued to Fixe Pre-
vention Code enforcement officials for two years
only, or until June 30, 1994. whichever is later,
and may not be renewed. The official wtH shall
take whatever measures are necessary during such
period to qualify for an appropriate standard
certificate. A probationary certificate authorizes
the official, during the effective period of the cer-
tificate, to hold the position of the type, level,
and location specified. The certificate shall be
conditioned upon the applicant's applicant
working under supervision sufficient to protect
the public health and safety; or the applicant
must have a minimum of two years of design,
construction, or inspection experience working
under a certified inspector, licensed engineer, ar-
chitect, or contractor, or one of the experience
qualifications listed in the Board's rules in each
area of code enforcement for which the
probationary certificate is issued; or the applicant
must have successfully completed a probationary
pre-qualification exam administered by the Board
in each area of code enforcement for which the
probationary certificate is issued.

Statutory Authority G.S.
143- 15 1.13(d).

143-151.12(1);

TITLE 12 - DEPARTMENT OF JUSTICE

CHAPTER 8 - ENGINEERING AND BUILDING
CODES

SECTION .0600 - QUALIFICATION
BOARD-PROBATIONARY CERTIFICATE

iV otice is hereby gh'en in accordance with G.S.
I50B-2I .2 that the North Carolina Alarm Systems
Licensing Board intends to adopt rule(s) cited as
12 NCAC 11 .0208.

.0602 NATURE OF PROBATIONARY
CERTIFICATE

A probationary certificate may be issued, with-
out examination, to any newly-employed or
newly-promoted code enforcement official who
lacks a standard certificate which covers his new
position. A probationary certificate is issued for
two years only and may not be renewed. A

1 he proposed effective date of this action is Oc-
tober 1, 1992.

1 he public hearing will be conducted at 11:00
a.m. on July 17, 1992 at the State Bureau of In-
vestigation, Conference Room, 3320 Old Garner
Road, Raleigh, N.C. 27626-0500.

643

7:7 NORTH CAROLINA REGISTER July I, 1992

PROPOSED RULES

JXeason for Proposed Action: To require
licensees to view a video training tape within 90
days of licensure.

O omment Procedures: Interested persons may
present their views either orally or in writing at the
hearing. In addition, the record of hearing will
be open for receipt of written comments until the
hearing. Written comments must be delivered to:
Mr. James F. Kirk, NC A larm Systems Licensing
Board, 3320 Old Garner Rd., P.O. Box 29500,
Raleigh, N.C. 27626-0500.

CHAPTER 11 -N.C. ALARM SYSTEMS
LICENSING BOARD

SECTION .0200 - PROVISIONS FOR
LICENSEES

.0208 TRAINING REQUIREMENTS FOR
ALARM LICENSEES

Every Alarm licensee shall satisfactorily com-
plete viewing of a video training session offered
by the Alarm Systems Licensing Board. This
video training session will be offered quarterly
and must be completed by the licensee within 90
days of licensure.

Statutory Authority G.S. 74D-5(a)(2).

TITLE 15A - DEPARTMENT OF

ENVIRONMENT, HEALTH, AND

NATURAL RESOURCES

- omment Procedures: The Commission would
also like to receive comment on the necessity to
establish fees for municipal or industrial laborato-
ries and commercial laboratories at the same level.
The proposed Rules set the minimum fees at dif-
ferent levels.

All persons interested in this matter are invited to
attend. Comments, statements, data, and other
information may be submitted in writing prior to,
during, or within 15 days after the hearing or may
be presented orally at the hearing. Persons de-
siring to speak will indicate their intent at the time
of registration at the hearing. Statements may be
limited to three minutes at the discretion of the
hearing officer. Submittals or written copies of
oral statements are encouraged. Send comments
to William Edwards Jr., EHNRjDEM Laboratory
Section, 4405 Reedy Creek Road, Raleigh, North
Carolina 27607-6445, Telephone (919) 733-3908.

1 his Rule affects the expenditures or revenues
of State and local funds. A fiscal note was sub-
mitted to the Fiscal Research Division on April
29 1992, OSBM on April 29, 1992, N.C. League
of Municipalities on May 4, 1992, and 1S.C. As-
sociation of County Commissioners on May 4,
1992.

CHAPTER 2 - ENVIRONMENTAL
MANAGEMENT

SUBCHAPTER 2H - PROCEDURES FOR
PERMITS: APPROVALS

J V otice is hereby given in accordance with G.S.
150B-21.2 that the Environment, Health, and Na-
tural Resources intends to amend rules cited as
15 A NCAC 2H .0801 - .0810.

1 he proposed effective date of this action is No-
vember 2, 1992.

1 he public hearing will be conducted at 7:00
p.m. on July 21, 1992 at the Ground Floor Hear-
ing Room, Archdale Building, 512 North
Salisbury Street, Raleigh, North Carolina.

IVeason for Proposed Action: To add certif-
ication requirements for; groundwater programs;
toxic organic analyses; certain inorganic analyses;
Class I & II wastewater treatment plant labs and
civil penalties for certification infractions. Certif-
ication fees are increased to fund personnel and
operating expenses for the expanded program.

SECTION .0800 - LABORATORY
CERTIFICATION

.0801 PLRPOSE

These Regulations Rules set forth the require-
ments for state certification of commercial, mu-
nicipal, and industrial laboratories te which
perform water analyses required by the Water
and Air Quality Reporting Act, G.S. 143-215.63
et seq; Environmental Management Commission
Regulations Rules for Surface Water Monitoring
and Reporting found in Subchapter 2B of this
Chapter, Section .0500; aft4 Environmental
Management Commission Regulations Rules for
Local Pretreatment Programs found in 15A
NCAC 2H .0900; and the Environmental Man-
agement Commission Rules for Groundwater
Classification and Standards found in 15A
NCAC 2L .0100, .0200. and .0300.

Statutory Authority G.S. 143-215. 3(a) ( 1 );
143-215.3(a)(I0).

7:7 NORTH CAROLINA REGISTER July I, 1992

644

PROPOSED RULES

.0802 SCOPE

These Rules apply to commercial laboratories
and Class IU a&4 W- municipal or industrial
wastewater treatment plant laboratories which
perform water analyses for persons subject to
G.S. 143-215.1, 143-215.63, et seq.; e* the Envi-
ronmental Management Commission Rules for
Surface Water Monitoring and Reporting found
in Subchapter 2B of this Chapter, Section .0500;
and Groundwater rules found in L5 NCAC 2L
.0100. .0200, and .0300. These Rules also apply
to all wastewater treatment plant laboratories for
municipalities having Local Pretreatment Pro-
grams as found regulated in 15A NCAC 2H
.0900. Municipal and industrial laboratories that
perform analyses for twe- three or less of the pa-
rameters listed in Rule .0804 of this Section ate
exempt may be exempted from the requirements
of these Rules. Written requests for the ex-
emption will be considered by the State Labora-
tory on a case by case basis.

Statutory Authority G.S. I43-2I5.3(a)(l );
143-215.3(a)(10).

.0803 DEFINITIONS

The following terms as used in this Section shall
have the assigned meaning:

( 1 ) Commercial Laboratory means any labo-
ratory, including its agents or employees,
which is seeking to analyze or is analyzing
water samples for others for a fee^

(2) State means the North Carolina Division
of Environmental Management of the De-
partment of Environment. Health, and Na-
tural Resources, aft4 Community
Development, or its successor.

(3) State Laboratory means the Laboratory
branch Section of the North Carolina Divi-
sion of Environmental Management, or its
successor.

(4) Lnacceptable results on performance
evaluation samples or split samples are those
that vary by more than ptas »f minus 2S
percent ef th# value the 99 percent confi-
dence interval or three standard deviations
as determined by the State Laboratory
Lnited States Environmental Protection
Agency If" PA) or the State Laboratory may
adopt specific variance limits for a particular
sample or parameter.

(5) Certification is a declaration by the State
that the personnel, equipment, records,
quality control procedures, and methodol-
ogy cited by the applicant are accurate and
that the applicant's proficiency has been
considered and found to be acceptable.

(6) Decertification is loss of certification.

(7) Recertification is reaffirmation of certif-
ication.

(8) Municipal Laboratory means a laboratory,
including its agents or employees, operated
by a municipality or other local government
to analyze samples from its wastewater
treatment plant(s).

(9) Industrial Laboratory means a laboratory,
including its agents or employees, operated
by an industry to analyze samples from its
wastewater treatment plant(s).

(10) Pretreatment Program means a program
of waste pretreatment requirements set up in
accordance with 15A NCAC 2H .0900 and
approved by the Division of Environmental
Management.

(11) Inaccurate data or other information
means data or information that is in any wa
incorrect, mistaken or not accurate.

(12) falsified data or information means data
or information which has, for whatever rea-
son, been knowingly made false or untrue
by alteration, fabrication, omission, substi-

tution, or mischaracterization.

(13) Subcontracting samples means one com-
mercial laboratory sends client samples to
another commercial laboratory for analyses.

( 14) Analytical Chemistry experience means
experience analyzing samples in a chemistry
laboratory or supervising a chemistry labo-
ratory that analyzes samples.

Statutory Authority
I43-215.3(aj(10).

G.S. 143-215.3(a)(l);

.0804 PARAMETERS FOR WHICH

CERTIFICATION MAY BE REQUESTED

(a) Commercial laboratories nood are required
to obtain certification only for parameters which
will be reported by the client to comply with the
monitoring State surface water monitoring
groundwater, and pretreatment regulations.
Rules. Municipal and Industrial Laboratories
nood are required to obtain certification only for
parameters which will be reported to the State to
comply with State surface water monitoring,
groundwater, monitoring and pretreatment rogu
lations. Rules.

(b) A listing of selected certifiable inorganic pa-
rameters follows:

(1) BOD

(2) COD

(3) Chloride

(4) Chlorine, total residual
[5] (44 Conform, fecal ML
(6| £5} Coliform, total ME

(7) (4) Conform, fecal tube

(8) & Coliform. total tube

645

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

[9\ Co\ot a Platinum Cobalt

(21) f44) Mercury

(10) Color, ADM I

(48) Solonium

( 1 1) Conductivity

(22) (43) Ammonia nitrogen

(12) (8) Cyanide

(23) f30) Total Kjeldahl nitrogen (TKN)

(131 (9) Fluoride

(24) f34) Nitrate plus nitrite nitrogen

(49) Groaoo a&4 Q+l

(251 Nitrate nitrogen

(14) (44) Hardness, total

(26) Nitrite nitrogen

(15) (43) MB AS

(27) f33) Total phosphorus

(161 f^l Metals, Group I - regular level -

(28) (34) Orthophosphate

Atomic Absorption Flame (AAF), In-

(29) Oil and Grease - Water

ductively Coupled Plasma (ICP), or

(30) Oil and Grease - EPA Method 9071

colormetric, if applicable.

(3Fi(04) P H

(A) (a) aluminum

(32) f3$) Phenols

(B) arsenic - ICP or colormetric only

(33) Residue, settleable

(34) (36) Residue, total

(D) fe) cadmium

(35) Residue, total dissolved 180°C

(E) (4) chromium, total

(36) (32) Residue, total suspended

(Fl fe) cobalt

(37) Sulfate

(Gl fi) copper

(38) Sulfide

(H) (g) iron

(39) Sulfite

(I] f» lead

(40) Total Organic Carbon (TOC)

fi) maganooo

(41) (3S) Turbidity

(J) manganese

(42) TCLP Extraction EPA Method 1311 -

(K) (t> nickel

Metals and/or Organics. Must be ac-

(L) selenium - ICP only

companied by the appropriate metals and

(M) vanadium

organics certifications.

(N) fk)zinc

(17) (44) Metals, Group II - regular level -

listed in this Paragraph will be considered a

Atomic Absorption Flame (AAF), In-

certifiable parameter. A listing of certifiable or-

ductively Coupled Plasma (ICP), or

ganic parameters follows:

colormetric, if applicable.

(1) Purgeable I lalcocarbons - EPA method

(A) fa) antimony

601

(B) fb) silver

- Standard Methods 6230B, 6230D

(CI fe) thallium

- EPA method 5030 plus 8010

(18) Metals, Group I - low level - Atomic

- EPA method 5030 plus 8021

Absorption Graphite Furnace (GF) or

(2) Pureeable Aromatics - FPA method 602

hydride

- Standard Methods 6220B, 6230 D

(A) aluminum

- EPA method 5030 plus 8020

(B) arsenic - GF or hydride

- EPA method 5030 plus 8021

(3) Acrolein, Acrvlonitrile, Acetonitrile -

(D) cadmium

EPA method 603

(E) chromium, total

- EPA method 5030 plus 8030

(F) cobalt

(4) Phenols - EPA Method 604

(G) copper

- Standard Methods 6420B

(H) iron

- EPA Method 8040 with 3500 series ex-

(I) lead

tractions

(J) manganese

(5) Benzidines - EPA Method 605

(K) nickel

(6) Phthalate Esters - EPA Method 606

(F) selenium - GF or hvdride

- EPA Method 8060 or 8061 with 3500

(M) vanadium

series extractions

(N) zinc

(7) Nitrosamines - FPA Method 607

(19) Metals, Group II - low level - Atomic

- EPA Method 8070 with 3500 series ex-

Absorption Graphite Furnace (GF)

tractions

(A) antimony_

(8) Oraanochlorine Pesticides and PCBs -

(B) silver

EPA method 608

- Standard Methods 6630B, 6630C

(44) Arsenic

- FPA method 8080, 8081 with 3500 series

(20) f44) Barium

extractions

7:7 NORTH CAROLINA REGISTER July 1, 1992 646

PROPOSED RULES

Nitroaromatics and Isophorone
method 609

: E PA method 8090 with 3050 series ex-
tractions

(9) Nitroaromatics and Isophorone - EPA
rr

(10) Polvnuclear .Aromatic Hydrocarbons -
EPA method 610
- Standard Methods 6440B
I E PA method SI 00 with 3500 series ex-
tractions

Haloethers - EPA method 611
: EPA method SI 10 with 3500 series ex-
tractions

Q21

Chlorinated Hydrocarbons EPA
method 612
- EPA methods 8120. 8121 with 3500 se-
ries extractions
13) Purgeahle organics - EPA methods 624,
1^24
-Standard Methods 6210B. 6210D

lus

Ills

240

<J±1

S2NJ

- EPA method 5030
- EPA method 5030

Base Neutral and Acid Organics
methods 625. 1625 "

- Standard Methods 6410B

EPA

: EPA methods 8250. 8270 with 3500 se-
ries extractions
( 15) Chlorinated Acid Herbicides - Standard
methods 5Q9B. 6640 B
- EPA methods 8150, 8151 with 3500 se-

ries extractions

(16)
Oil

Oil

H9)

EPA

Organophosphorus Pesticides

methods 8140, S 14 1 with 3500 series ex-
traction-.

Total Petroleum Hydrocarbons - (TPH)
California GC Method with EPA method
5030 and 3550 extractions
Nonhalogenated Volatile Organics - EPA
Method 8015A

N-Methvlcarbamates - EPA method

8318

- EPA Method 632
20) ~ L2. Dibromoethane (EDB) - EPA

G.S. 143-2153(a)(l);

Method 504

Statutory? A uthority
143-215.3(a)(10).

.0805 CERTIFICATION AND RENEWAL OF
CERTIFICATION

(a) Prerequisites and requirements for Certif-
ication. The following requirements must be
met prior to certification. Once certified, failure
to comply with any of the following items will
be a \lolation of certification requirements.
(1) Laboratory' Procedures. Analytical meth-
ods, sample preservation, sample contain-
ers and sample holding times shall
conform to those requirements found in

40 CFR- 136.3, Federal Register, Vol. 49,
p. 43234 (October 26, 1984); a^ or
Federal Register, Vol. 50, p. 690 (January
4, 1985); as oubmittod fey ike Environ
m e ntal Protection Agency, or Federal
Register, Vol. 5L p. "23692 (January 3JL.
1986); or Federal Register, Vol. 56 rx
50758 (October 8j 1991) for wastewater
and surface water analyses; and 15A
NCAC 2L .0112 of the State
Groundwater rules for groundwater, soils,
sediments, and sludge analyses. All sam-
ples must meet the preservatives and
holding time requirements in the October
26, 1984. Federal Register. These and
subsequent amendments and editions are
incorporated by reference. This material
is available for inspection at the State
Laboratory, 4405 Reedv Creek Road,
Raleigh, North Carolina 27607. Copies
of the Federal Register may be obtamed
by requesting a copy of the Code of Fed-
eral Regulations. 40 CFR-136.3. parts
100-149 from the Superintendent of Doc-
uments, U.S. Goyernment Printing Office,
Washington. D.C. 20402 at a cost of thirty
dollars ($30.00). Copies of 15A NCAC
2L may be obtained from 1 ' NR. Divi-
sion of Environmental Management,
Groundwater Section. P.O. Box 29535,

Raleigh, N.C. 27626-0535 at no charge.

The method for total petroleum
hydrocarbons shall be the California Gas
Method,

Chromatograph
D.M., and Others,

Eisenberg,
L>85, Guidelines for
addressing fuel leaks: California Regional
Quality Control Board San Francisco Bay
Region. 43 pp. or F H N R Guidelines for
Remediation of Soil Contaminated by
Petroleum The method for N-

Methvlcarbamates shall be EPA Method
S3 IS or EPA Method M2. The method
for low level 1.2- Dibromoethane (EDB)
shall be EPA method 504. Other labora-
tory procedures as may be approved by
the Director of the Division of Environ-
mental Management may be used.

(2) Performance Evaluations. Each labora-
tory must demonstrate satisfactory ac-
ceptable performance on evaluation
samples submitted by the State Labora-
tory or EPA.
(A) Municipal and Industrial laboratories
must participate in the annual Environ-
mental Protection Agency Discharge
Monitoring Report Quality Assurance
(EPA DMR QA) Study by analyzing the
sample supplied hv I PA and reporting

64"

/:/

\ORTH CAROLINA REGISTER July I, 1992

PROPOSED RULES

data produced. The State Laboratory will
submit samples to any laboratory not eli-
gible to receive the EPA samples.

(B) Commercial laboratories must partic-
ipate in the EPA Water Pollution (WP)
Studies by analyzing the samples supplied
by EPA and reporting data produced.
The State Laboratory will submit samples
to any laboratory not eligible to receive
the EPA samples. When two samples for
the same parameter are submitted and
analyzed at the same time, an unaccepta-
ble result on one or both samples will be
considered the first unacceptable result for
certification purposes and a rerun sample
will be submitted.

(C) Laboratories requesting initial certif-
ication must submit an acceptable per-
formance sample result for each parameter
for which performance samples are avail-
able. Laboratories that submit two un-
acceptable results for a particular
parameter must then submit two consec-
utive acceptable results for that parameter
prior to initial certification.

(D) If performance samples are not avail-
able for a parameter, certification for that
parameter will be based on the proper use
of the approved procedure, the on-site in-
spection, and adherence to the other re-
quirements in this Section. Analysis of
split samples may also be required.

(E) In the Gas Chromatography, Liquid
Chromatography, or Gas Chromatograph
Mass Spectrometer Categories, a labora-
tory's performance on a specific analytical
method may be determined by the labo-

ratory's ability to acceptably analyze se-
lected indicator chemicals as specified by
the State Laboratory during a perform-
ance evaluation.
(3) Supervisory Requirements.

(A) The supervisor of a commercial labo-
ratory must have a minimum of a B.S. or
A.B. degree from an accredited college or
university in chemistry or closely related
science curriculum plus a minimum of
two years laboratory experience in analyt-
ical chemistry, or a two year associate de-
gree from an accredited college, university,
or technical institute in chemistry tech-
nology, environmental sciences, or closely
related science curriculum plus a mini-
mum of four years experience in analytical
chemistry. Non dogroo ouporvioors must
hav e at- least si* y e aro laboratory oxpori

(B) The supervisor of a municipal or in-
dustrial waste water treatment plant labo-
ratory must have a minimum of a B.S. or
A.B. degree from an accredited college or
university in chemistry or closely related
science curriculum plus a minimum of six
months laboratory experience in analytical
chemistry, or a two year associate degree
from an accredited college, university, or
technical institute in chemistry technol-
ogy, environmental sciences, or closely
related science curriculum plus a mini-
mum of two years experience in analytical
chemistry. Non-degree supervisors must
have at least six years laboratory experi-
ence in analytical chemistry.

(C) All laboratory supervisors are subject
to review by the State Laboratory. One
person may serve as supervisor of no
more than two laboratories. The super-
visor shall provide personal and direct
supervision of the technical personnel and
be held responsible for the proper per-
formance and reporting of all analysis
made for these Regulations. Rules. The
supervisor must work in the laboratory
or visit the laboratory once each day. If
the supervisor is to be absent, the super-
visor shall arrange for a substitute capable
of insuring the proper performance of all
laboratory procedures, however, the sub-
stitute supervisor can not be in charge for
more than three consecutive weeks. Ex-
isting laboratory supervisors that do not
meet the requirements » this Paragraph
of this Rule may be accepted after review
by the State Laboratory and meeting all
other certification requirements. Previous
laboratory-related performance will be
considered when reviewing the qualifica-
tions of a potential laboratory supervisor.

(4) Laboratory Manager. Each laboratory
must designate a laboratory manager and
include his name and title on the applica-
tion for certification. The laboratory
manager shall be administratively above
the laboratory supervisor and will be in
responsible charge in the event the labo-
ratory supervisor ceases to be employed
by the laboratory' and will be responsible
for filling the laboratory supervisor posi-
tion with an acceptable replacement. At
commercial laboratories, where the owner
is the laboratory supervisor, the labora-
tory manager and laboratory supervisor
may be the same person if there is no one
administratively above the laboratory
supervisor.

7:7 NORTH CAROLINA REGISTER July I, 1992

648

PROPOSED RULES

(5) f-ty Application. Each laboratory' request-

ing state certification or certification re-
newal shall submit an application in
duplicate to the State Laboratory. Each
application wtH be reviewed te d e t e rmin e
the adequacy ef personnel, oquipmont,
records, quality control procedures, a«4
methodology. After receiving a com-
pleted application and prior to issuing
certification, a representative of the State
Laboratory may visit each laboratory to
verify the information in the application
and the adequacy of the laboratory.

(6) (4) Facilities and equipment. Each labo-

ratory requesting certification must con-
tain or be equipped with the following
except Class I and I_I wastewater treatment
plants may be exempted from Part (A),
(B), or (_E| of this Subparagraph if they
are performing three or less of the
certifiable parameters:

(A) A minimum of 150 sq. ft. of laboratory
space;

(B) A minimum of 12 linear feet of labora-
tory bench space;

(D) Adequate lighting, cooling, and heating;

(E) An analytical balance capable of
weighing 0.1 mg, mounted on a heavy
shock proof table;

(F) A refrigerator of adequate size that will
maintain temperature of 4^Gj four degrees
Celsius;

(G) A-ft EPA approved &f a current copy ef
"Standard Methods fof the Analysis »f
Wat e r and Wastewater" e* E P As "Moth

»4* fef Chemical Analysis »f Water ami
W r astes"; A copy of each approved ana-
lytical procedure being used in the labo-
ratory';

(H) A source of distilled or deionized water
that will meet the minimum criteria of the
approved methodologies;

(I) Glassware, chemicals, supplies, and
equipment required to perform all analyt-
ical procedures included in their certif-
ication.
(7) (4} Analytical Quality Control Program.
Each laboratory shall develop and main-
tain a document outlining the analytical
quality control practices used for the pa-
rameters included m their certification.
Supporting records shall be maintained as
evidence that these practices are being ef-
fectively carried out. The quality control
program document shall be available for
inspection by the State Laboratory. a«d
includ e The following are requirements

for certification and must be included in
each certified laboratory's quality control
program.

(A) All analytical quality control data per-
tinent to each certified analysis must be
filed in an orderly manner so as to be
readily available for inspection upon re^
quest.

(B) Excluding Oil and Grease, all residue
parameters, TCLP extractions, residual
chlorine, and conform, analyze e«e dupli
eate sample &h4 one known standard in
addition to calibration standards each day
samples are analyzed to document proci
sie* a&4 accuracy. Analyze one sus-
pended residue, one dissolved residue, one
residual ehlonne and one oil and grease
standard quarterly. For residual chlorine,
all calibration standards required by the
approved procedure in use and by EPA
must be analyzed.

(C) Excluding Oil and Grease, analyze 10
percent of all samples in duplicate to
document precision. Laboratories ana-
lyzing less than ten samples per month
must analyze at least one duplicate each
month samples are analyzed.

(D) f&} Any quality control procedures re-
quired by a particular approved method
shall be considered as required for certif-
ication for that analysis.

(E) fEty All quality control requirements as
set forth by the State Laboratory.

(F) ffc} A corrective action policy requiring
that- at- Any time quality control results
indicate an analytical problem, resolve the
problem et&4 r e run a»y- oamplos involv e d.
must be resolved and any samples in-
volved must be rerun if the holding time
has not expired.

(G) (-F-f A policy requiring that All analyt-
ical records must be maintain od available
for a period of three years.

(11) .All laboratories must use printed labo-
ratory bench worksheets that include a
space to enter the signature or initials of
the analyst, date of analyses, sample iden-
tification, volume of sample analyzed,
value from the measurement system, fac-
tor and final value to be reported and each
item must be recorded each time samples
are anal\/ed. I he date and time BOD
and coliform samples are removed trom
the incubator must be included on the
laboratory worksheet.

(1) For anaLvtical procedures requiring
analysis of a series of standards, the con-
centrations of these standards must

649

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

bracket the concentration of the samples
analyzed. One of the standards must have
a concentration equal to the laboratory's
lower reporting concentration for the pa-
rameter involved. For metals by AA or
ICP, a series of at least three standards
must be analyzed along with each group
of samples. For colormetric analyses, a
series of five standards or standards as set
forth in the analytical procedure must be
analyzed to establish a standard curve.
The curve must be updated as set forth in
the standard procedures, each time the
slope changes by more than 10 percent at
mid-range, each time a new batch of
chemicals is used, each time a new stock
standard is prepared, or at least every 12
months. Each analyst performing the
analytical procedure must produce a
standard curve.

thermometer and

made.

and proper corrections

(J) Each day an incubator, oven, waterbath
or refrigerator is used, the temperature
must be checked, recorded, and initialed.
During each use, the autoclave maximum
temperature and pressure must be
checked, recorded, and initialed.

(K) The analytical balance must be checked
with one clase S standard weight each day
used and at least three standard weights
quarterly. The values obtained must be
recorded in a log and initialed by the ana-
lyst.

(L) Chemicals must be dated when received
Reagents must be

and when opened.

dated and initialed when prepared.

(M) A record of date collected, time col-
lected, sample collector, and use of proper
preservatives must be maintained.

(N) At any time, a laboratory receives
samples which do not meet sample col-
lection, holding time, or preservation re-
quirements, the laboratory must notify the
sample collector or client and secure an-
other sample if possible. If another sam-
ple cannot be secured, the original sample
may be analyzed but the results reported
must be qualified with the nature of the
infraction(s) and the laboratory must no-
tify the State Laboratory about the
infraction(s). The notification must in-
clude a statement indicating whether or
not the problem has been resolved for fu-
ture samples.

(O) All thermometers must meet National
Institute of Standards and Technology
(NIST) specifications for accuracy or be
checked against a NIST traceable

(2)

(3)

(8) (9) Decertification Requirements. Munic-
ipal and industrial laboratories that cannot
meet initial certification requirements
must comply with the Decertification Re-
quirements as set forth in Rule .0807 (&}
(e) of this Section,
(b) Issuance of Certification.

(1) In the absence of substantial deficiencies,
certification will be issued by the Director,
Division of Environmental Management,
Department of Environment, Health, and
Natural Resources, a«4 Community De-
volopmont, or his delegate, for each of the
applicable parameters requested.
Initial certifications will be issued for pro-
rated time periods to schedule all certif-
ication renewals on the first day of
January.

Initial certification shall be valid for up to
three years from date of issue.

Maintenance of Certification.
To maintain certification for each param-
eter, a certified laboratory must analyze
up to throo five performance evaluation
samples p_er parameter per year submitted
by the State Laboratory or EPA as an
unknown. Laboratories submitting un-
acceptable results on a performance eval-
uation sample may be required to analyze
more than three five samples per year.

(2) In addition, the State Laboratory may re-
quest that samples be split into two equal
representative portions, one part going to
the state and the other to the certified
laboratory for analysis.

(3) The State laboratory may submit or re-
quire clients to submit blind performance
samples or split samples under direction
of State Laboratory personnel.

{4} frty A certified laboratory will be subject to
periodic announced or unannounced in-
spections during the certification period
and shall make time and records available
for inspections and must supply copies of
records for any investigation upon written
request by the State Laboratory.

(4f The Stato Laboratory will maintain a fe*
ef certified commercial laboratories a«4
the parameters fof which the laboratories
have boon certified. The list- wiH be Fe-
visod over/ si* months.

{4) The State Laboratory will maintain a hst
ef certified municipal ftft4 industrial labo
ratorios a«4 the parameters fe* which the
laboratories have boon cortifiod. The fe*
will be revised ovory si* months.

7:7 NORTH CAROLINA REGISTER July I, 1992

650

PROPOSED RULES

(d)
(1)

(2)

(e.

(5) (4) A certified laboratory must provide the
State Laboratory with written notice of
laboratory supervisor or laboratory man-
ager changes within 30 days of such
changes.

(6) A certified laboratory must submit written
notice of any changes of location, owner-
ship, address, name, or telephone number
within 30 days of such changes.

Certification Renewals.
Applications for certification renewal will
must be submitted in duplicate to the
State Laboratory 30 days in advance of
expiration of certification.
Certification renewals of laboratories shall
be issued for u£ to three years, with the
e xception that renewals fef existing corti
fied laboratories may fee prorated te- make
aft certification renewals 4we »» the fifst
tlay eft January'.

Data reporting.

( 1 ) Certified commercial laboratories must
make data reports to their clients that are
signed bv the laboratoiy supervisor. This
duty may be delegated in writing; how-
ever, the responsibility shall remain with
the supervisor.

(2) Whenever a certified commercial labora-
tory refers or subcontracts samples to an-
other certified laboratory for analyses, the
referring laboratory must supply the date
and time samples were collected to insure
holding times are met.

The initial client requesting the analyses
must receive the original or a copy of the
report made by the laboratory that per-
forms the analyses.
(f) fe) Discontinuation of Certification

(1) A laboratory may discontinue certification
for any or all parameters by making a
written request to the State Laboratory.

(2) After discontinuation of certification, a
laboratory may be recertified by meeting
the requirements for initial certification,
however, laboratories that discontinue
certification during any investigation shall
be subject to Rule .0808 of this Section.

Statutory Authority G.S. 143-21 5.3( a) ( 1 );
143-215.3(a)(I0).

.0806 FEES ASSOCIATED WITH
CERTIFICATION PROGRAM

(a) C e rtification h«4 Certification R e n e wal
Fees. Before being granted certification »f tes-
tification renewal, laboratories shall pay t» the
state a fee eft twenty dollars ($20.00) fof eaeh
parameter fop which certification is requested.

however, the rninimum fee wft± be tw-© hundred
6% dollars ($250.00).

fb) Certification Maintenance) Food. Aft or eep-
tification »f certification renewal has boon icsuod
certified laboratories wift pay te the state a eep-
tifioation maintenance fee eft tw-e- hundred fifty
dollars ($250.00) eaeh year. Certification main
tenanco fees v«40 net be required fef those years
ft* which c e rtification e>f c e rtification renewal ape

I OQ T-I II V^J . I IIl-T.n-' rC^TJ LU \J \XW C7TT U 1 VJ \Jl\J I \,' TT^^ rTi^T

day eft January e* the certification anniversary

(a) Municipal and industrial laboratories must
pay an annual fee of fifty dollars ($50.00) for each
inorganic parameter plus one hundred dollars
($100.00) for each organic parameter; however.
the minimum fee will be one thousand dollars
($1.000.00) per year.

(b) Commercial laboratories located in North
Carolina must pay an annual fee of fifty dollars
($50.00) for each inorganic parameter plus one
hundred dollars ($100.00) for each organic pa-
rameter; however, the minimum fee will be two
thousand dollars ($2.000.00) per year.

North Carolina must

pay an

annual fee of

seventy-five dollars ($75.00) for each inorganic
parameter plus one hundred and fittv dollars
($150.00) for each organic parameter; however,
the minimum fee will be three thousand five
hundred dollars ($3,500.00) per year.

(d) feft Prior to receiving initial certification a
laboratory must pay the appropriate fee as spec-
ified in Paragraph (a), (b), or [c} of this Rule.
Initial certification tees may will be prorated m
order on a semi-annual basis to make all certif-
ication renewals due on the first day of January.

(e) Once certified, a laboratory' must pav the
full annual parameter fee for each parameter
added to their certificate.

(f) A laboratory decertified for all parameters
must pay initial certification fees prior to recer-
tification.

(g) A laboratory decertified for one or more
parameters must pay a fee of one hundred dollars
($100.00) for each parameter for which it was
decertified prior to recertification.

(h) (d) Out-of-state laboratories shall reimburse
the state for actual travel and subsistence costs
incurred in certification and maintenance of cer-
tification.

(i) Annual certification fees are due by De-
cember 31 of each year.

[jl A fifty dollars ($50.00) late payment fee
must be paid when annual certification fees are

not paid by the date due.

(k) For laboratories seeking initial certification
or recertification. the State Laboratory will pro-

651

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

vide two performance samples for each parameter
at no charge; however, a fee of one hundred dol-
lars ($100.00) per sample will be charged for all
samples after the first two have been supplied.
(1| Metals group I and metals group II will be
considered as single parameters when calculating
fees.

Statutory Authority G.S. 143-215 3(a) ( 1 );
143-2153(a)(10).

.0807 DECERTIFICATION AND CIVIL
PENALTIES

(a) Laboratory Decertification. Once cortifiod,
A laboratory may lose its certification be decer-
tified for any or all parameters by failing to for
up to one year for any of the following inf-
ractions:

(1) Failing to maintain the facilities, or re-
cords, or personnel, or equipment, or
quality control program as set forth in the
application, and these Regulations; Rules;
or

(2) Submit truthful a«4 accurate Submitting
inaccurate data reports; or other informa-
tion; or

(3) Failing to pay required fees by the date
due; or

(4) Failing to discontinue supplying data for
clients or programs described in Rule
.0802 of this Section during periods when
a parameter decertification is in effect; or

(5) Failing to submit a split sample to the
State Laboratory as reques'

(61

£21

State Laboratory as requested; or

Failing to use approved methods of
analysis; or

Failing to report laboratory supervisor or
equipment changes within 30 days of such
changes; or

Failing to report analysis of performance
evaluation samples submitted by EPA or
the State Laboratory within the specified
time limits; or

Failing to allow an inspection by an au-
thorized representative of the State labo-
ratory; or

(10) Failing to supply analytical data re-
quested by the State laboratory; or

(11) Failing to submit a renewal application
30 days prior to the expiration date of the
certificate; or

(12) Failing to meet required sample holding
times; or

(13) Failing to respond to requests for infor-
mation by the date due; or

( 14) Failing to comply with any other terms,
conditions, or requirements of this Section
or of a laboratory certification.

(b) Parameter Decertification. Onc e certified,
A laboratory may loooo its certification fof a- re-
ceive a parameter decertification for by failing to:

(1) Obtain acceptable results on two consec-
utive blind and or announced perform-
ance evaluation samples submitted by
EPA or the State Laboratory; or

(2) Obtain acceptable results on throo two
consecutive blind and or announced split
samples that have also been analyzed by
the State Laboratory, ef

£4} Submit a split sampl e te the State Labo

rat or/ as roquostcd; ef
(4} 14se approv e d methods ef analyoio; &f
(4) Report e quipment ohangoo that would a£-

feet its ability te perform the test within

30 days ef such changes; e*
(4) Report analysis e( performance evaluation

samples submitted by- the State Labora

t j-i n .- n:itliin I i 1 il-ii t a r~i T r-f* .-»fm>f - j-^i «-
WJl T "III UJ I JIT UU T CT UfT I \_^JVIt_»l [ ^^r

£?) Maintain records a«4 perform quality
controls as set forth by those Regulations
a»4 the State Laboratory fof a particular
paramotor; e*

f&) Miiintain equipment required fef a partic
«laf parameter.

tified for all parameters for up to two years.

(d) Decertification Factors. In determining a
period of decertification, the Director shall rec-
ognize that any harm to the natural resources of
the State arising from violations of Rules in this
Section nia\ not he immediatch observed and
ma\ be incremented or cumulative with no dam-
age that can be immediately observed or docu-
mented. Decertification for periods up to the
maximum may be based on any and or a com-

bination of the following factors to be consid-
ered:

( 1) The degree and extent of harm, or po-
tential harm, to the natural resources of
the State or to the public health, or to
private property resulting from the vio-
lation;

(2) I'he duration, and gravity of the violation;

(3) The effect, or potential effect , on ground
or surface water quantity or quality or on
air quality;

(4) Cost of rectifying any damage;

(5) The amount of money saved by non-
compliance;

(6) As to violations other than submission
of falsified data or other information,
whether the violation was committed
willfully or intentionally;

(7) The prior record of the laboratory' in
complying or failing to comply with any

7:7 NORTH CAROLINA REGISTER July 1, 1992

652

PROPOSED RULES

State and federal laboratory rules and reg-
ulations;

(8) The cost to the State of investigation and
enforcement procedures;

(9) Cooperation of the laboratory in discov-
ering, identifying, or reporting the vio-
lation;

(10) Measures the laboratory implemented to
correct the violation or abate the effect of
the violation, including notifying any af-
fected clients;

(11) Measures the laboratory implemented to
correct the cause of the violation;

( 12) Any other relevant facts.

(e) fe> Decertification Requirements.
(1) A decertified laboratory is not to analyze
samples for the decertified parameters for
programs described in Rule .0802 of this
Section or clients reporting to these pro-
grams.

A decertified commercial laboratory must
supply written notification of the decertif-
ication to clients with Division of Fnvi-

01 A

ronmental Management reporting
requirements. Within 30 davs, the decer-
tified laboratory' must supply the State
I aboratory with a list of clients involved
and copies of the notices sent to each.

(3) f2f A decertified commercial laboratory'
that has received a parameter decertif-
ication may must make arrangements to
supply analysis through a another certified
laboratory during any decertification peri-
ods of notify clients that- the analysis can
sot be supplied. The decertified
laboratory must supply the State Labora-
tory with the name of the laboratory to
be used. a«4 tht» cliont(s) involv e d.

(4) A commercial laboratory decertified for
all parameters cannot subcontract samples
for analyses to other certified laboratories
during the decertification period.

(5) <rM A decertified municipal or industrial
laboratory must make arrangements to
have its their samples analyzed by another
certified laboratory during any decertif-
ication period and supply the State Labo-
ratory with the name of the certified
laboratory to be used.

(f) Civil Penalties. Civil penalties mav be as-
sessed against a laboratory which violates or fails
to act in accordance with anv of the terms, con-

ditions. or requirements of the Rules in this Sec-
tion or of a laboratory certification. A laboratory
is subject to both civil penalties and decertif-
ication.

Statutory Authority G.S. 143-215.3(a)( 1 );

143-215.3(a)(10); 143-21 5.6 A.

.0808 RFCERTIFICATION

(a) A laboratory decertified in accordance with
Rule .0807(a) of this Section because - el failure -
to maintain sufficient ef adequate facilities, e*
laboratory supervisor, of records, of e quipmont,
of quality control program, of failure to pay- f»-
quired fee* may be recertified after 30- days at the
end of the decertification period by showing to
the satisfaction of the State Laboratory 7 that it has
corrected the deficiency(ies).

(b) A laboratory decertified for a parameter due
to unacceptable results on two consecutive per-
formance evaluation samples submitted by EPA
or the State Laboratory, or on three two consec-
utive split samples may be recertified after 60
days by reporting acceptable results on two con-
secutive performance evaluation samples similar
to those foF which approval w&s lost submitted
bv the State Laboratory. Recertification samples
may be requested at any time, however, recertif-
ication must be requested in writing at the end
of the 60 day period immediately following the
date of decertification.

(c) A laboratory decertified for submitting fal-
sified reports losos certification foF ail parameters
afi4 shall »ot be considered foF aoy- certification
fe* a one year p e riod, data or other information
may be recertified at the end of the decertification

in a — ■ — _ — — — ■ ■ —

period by demonstrating compliance with all re-
quirements of this Section.

Statutory' Authority G.S.
143-215.3(a)(10).

143-215.3(a)(l);

.0809 RECIPROCITY

(a) Laboratories certified under other state cer-
tification programs may be given reciprocity cer-
tification where such programs meet the
requirements of those Regulations, this Section.
In requesting reciprocity certification, laborato-
ries shall include with the application required
by Regulation .0805(a) Rule .0805(a) of this
Section a copy of their certification and Regu-
lation from the certifying agency.

(b) Laboratories certified o» the basis of p*o-
gram equivalency bv reciprocity shall pay the fees
required by Regulation -0S06 Rule .0806 of this
Section.

(c) Anv time that a laboratory has its certif-
ication with the reciprocal program discontinued
for anv reason, certification under this Section
will be terminated at the same time.

Statutory Authority G.S. 143-215.3(a)(l);
143-215.3(a)(10).

653

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

.0810 ADMINISTRATION

(a) The Director of the Division of Environ-
mental Management, Department of Environ-
ment, Health, and Natural Resources, a**4
Community Dovolopment, or his delegate, is au-
thorized to issue certification, to reject applica-
tions for certification, to renew certification, to
issue recertification, to issue decertification, and
to issue reciprocity certification.

(b) Appeals. In any case where the Director
of the Division of Environmental Management,
Department of Environment, Health, and Na-
tural Resources, ae4 Community Dovolopmont
or his delegate denies certification, or decertifies
a laboratory, the laboratory may appeal to the
N.C. Office of Administrative Hearings in ac-
cordance with Chapter 150B of the General
Statutes.

(c) The State Laboratory will maintain a list
of certified commercial laboratories. The list will
be reprinted every six months.

(d) Implementation of the November, 1992
changes to this Section.

(1) All requirements of the Rules in this Sec-
tion are effective on the effective date of
the amendments.

Requests for the new parameters may be
made by submitting a properly completed
application form.

Excluding Class I and II wastewater
treatment plant laboratories not currently
certified, laboratories subject to the
amended requirements of these Rules
must submit a completed application
within three months of the effective date
of the amendments. Laboratories sub-
mitting an acceptable application for any
of the newly certifiable parameters may
analyze samples for these new parameters
until the State I .aboratorv has issued or
denied certification.

£21

(11

Class I and H wastewater treatment plant
laboratories not currently certified must
submit an application by July _L 1995, or
as requested by the State laboratory.
After submitting an acceptable applica-
tion, these laboratories may continue to
analyze samples until the State Labora-
torv has issued or denied certification.

Statutory Authority G.S. 1 43-21 5. 3(a) ( I );
143-2l5.3(a)(10); 150B-23.

******************

' otice is hereby given in accordance with G.S.
150B-2I.2 that the EHNR - Division of Environ-
mental Management intends to amend rule(s)
cited as 15 A NCAC 2M .0201.

1 he proposed effective date of this action is No-
vember 2, 1992.

1 nstructions on how to demand a public hearing
(must be requested in writing within 15 days of
notice): Any person(s) requesting a public hear-
ing on the proposed rule must submit such a re-
quest in writing within 15 days after publication
of the notice. The request must be submitted to
Mrs. Vega M. George, Division of Environmental
Management, P.O. Box 29535, Raleigh, NC
27626-0535. M ailed written requests must be re-
ceived by July 16, 1992.

I\eason for Proposed Action: To permit the
commitment of loan funds through the Federally
seeded State Revolving Fund program to finance
wastewater collection sewers.

■ omment Procedures: Interested persons de-
siring to make written comments concerning this
Rule should send their typewritten statement to
Mrs. Vega M. George, Division of Environmental
Management. P.O. Box 29535, Raleigh, NC
27626-0535. Mailed written comments must be
received by July 31, 1992.

CHAPTER 2 - ENVIRONMENTAL
MANAGEMENT

SLBCHAPTER 2M - NORTH CAROLINA

WATER POLLLTION CONTROL REVOLVING

FLND

SECTION .0200 - APPLICABLE ACTIVITIES

.0201 LOAN ACTIVITIES

(a) Loans shall be available for the construction
of publicly owned wastewater treatment works
that appear on the state's priority list and as they
are defined in Section 2 1 2 of the Federal Clean
Water Act. exoopt fof wastewater collection
sewers.

(b) Loans may be available for implementation
of a non-point source pollution control manage-
ment program under Section 319 of the Federal
Clean Water Act; and

(c) Loans may be available for development
and implementation of an estuary conservation
and management plan under Section 320 of the
Federal Clean Water Act.

7:7 NORTH CAROLINA REGISTER July I, 1992

654

PROPOSED RULES

Statutory Authority G.S. 159G-5(c); 159G-15.
******************

i V otice is hereby given in accordance with G.S.
150B-2L2 that the EHNR - Coastal Management
intends to amend rule(s) cited as ISA NCAC 7H
.0305, .0308, .0310.

1 he proposed effective date of this action is De-
cember 1, 1992.

1 he public hearing will be conducted at 4:00
p.m. on July 23, 1992 at the Crystal Coast Civic
Center, 3505 Arendell Street, Morehead City,
N.C.

easons for Proposed Actions:

15A NCAC 7H .0305 - Amendments to this Rule
consist of amending the definition of "frontal
dune" by eliminating a restriction on man-made
dunes and a reference to the primary dune.

ISA NCAC 7H .0308, .0310 - Amendments to these
Rules are to clarify development guidelines for the
Ocean Hazard System Area of Environmental
Concern.

Comment Procedures: All persons interested in
this matter are invited to attend the public hearing.
The Coastal Resources Commission will receive
mailed written comments postmarked no later
than July 31, 1992. Any person desiring to present
lengthy comments is requested to submit a written
statement for inclusion in the record of pro-
ceedings at the public hearing. Additional infor-
mation concerning the hearing or the proposals
may be obtained by contacting Dedra Blackwell,
Division of Coastal Management, P.O. Box
27687, Raleigh, NC 27611-7687, (919) 733-2293.

CHAPTER 7 - COASTAL MANAGEMENT

SUBCHAPTER 7H - STATE GLIDELINES FOR
AREAS OF ENVIRONMENTAL CONCERN

SECTION .0300 - OCEAN HAZARD AREAS

.0305 GENERAL IDENTIFICATION AND
DESCRIPTION OF LANDFORMS

(a) Ocean Beaches. Ocean beaches are lands
consisting of unconsolidated soil materials that
extend from the mean low water line landward
to a point where either:

(1) the growth of vegetation occurs, or

(2) a distinct change in slope or elevation al-
ters the configuration of the landform,
whichever is farther landward.

(b) Primary Dunes. Primary dunes are the first
mounds of sand located landward of the ocean
beaches having an elevation equal to the mean
flood level (in a storm having a one percent
chance of being equalled or exceeded in any given
year) for the area plus six feet. The primary dune
extends landward to the lowest elevation in the
depression behind that same mound of sand
(commonly referred to as the dune trough).

(c) Frontal Dunes. I» ar e as where thoro is a
primary dune, that- duno ohall be doomod t» be
the frontal duno. Whoro thoro is He primary
dun e , the The frontal dune is deemed to be the
first mound of sand located landward of the
ocean beach having sufficient vegetation, height,
continuity and configuration to offer protective
value. Man made mounds soaward ef the ea-

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ef primary dunoo.

(d) General Identification. For the purpose
of public and administrative notice and conven-
ience, each designated minor development
permit-letting agency with ocean hazard areas
may designate, subject to CRC approval, a read-
ily identifiable land area within which the ocean
hazard areas occur. This designated notice area
must include all of the land areas defined in .0304
of this Section. Natural or man-made landmarks
should be considered in delineating this area.

(e) "Vegetation Line" means the first line of
stable natural vegetation, which shall be used as
the reference point for measuring oceanfront set-
backs. This line represents the boundary be-
tween the normal dry-sand beach, which is
subject to constant flux due to waves, tides,
storms and wind, and the more stable upland
areas. It is generally located at or immediately
oceanward of the seaward toe of the frontal dune
and/or erosion escarpment. In areas where there
is no stable natural vegetation present, this line
shall be established by connecting or extending
the lines from the nearest adjacent vegetation on
either side of the site and by extrapolating (by
either on-ground observation or by aenal photo-
graphic interpretation) to establish the line.

(f) "Erosion Escarpment" means normal verti-
cal drop in the beach profile caused from high
tide and/or storm tide erosion.

(g) Measurement line means the line from
which the ocean front setback as described in
.0306(a) of this Subchapter is measured in the
unvegetated beach area of environmental concern
as described in .0304(a)(4) of this Subchapter.
Procedures for determining the measurement line

655

7:7 NORTH CAROLINA REGISTER July I, 1992

PROPOSED RULES

shall be adopted by the Commission for each
area where such a line is designated. These pro-
cedures shall be available from any local permit
officer or the Division of Coastal Management.

Statutory Authority G.S.
113A-1 13(b)(6); I13A-124.

11 '3 A- 107;

.0308 SPECIFIC USE STANDARDS FOR
OCEAN HAZARD AREAS

(a) Ocean Shoreline Erosion Control Activities:
(1) Use Standards Applicable to all Erosion
Control Activities:

(A) Preferred erosion control measures shall
be beach nourishment projects and relo-
cation. Alternative approaches will be
allowed where the applicant can show that
such measures are necessary to provide
adequate protection. Comprehensive
shoreline management shall be preferred
over small scale methods.

(B) Erosion control structures which cause
significant adverse impacts on the value
and enjoyment of adjacent properties or
public access to and use of the ocean
beach are prohibited. Such structures in-
clude, but are not limited to, wooden
bulkheads, seawalls, rock or rubble
revetments, wooden, metal, concrete or
rock jetties, groins and breakwaters;
concrete-filled sandbags and tire struc-
tures.

(C) Rules concerning the use of oceanfront
erosion control measures apply to all
oceanfront properties without regard to
the size of the structure on the property
or the date of its construction.

(D) Erosion control measures which will
interfere with public access to and use of
the ocean beaches are prohibited.

fE) Erosion control m e asur e s which r . ignif
icantly increase erosion eft adjacent prop
e rtioo ate prohibited.

(E) fE} All oceanfront erosion control ac-
tivities, other than beach bulldozing,
placement of sandbag structures or artifi-
cial seaweed shall demonstrate sound en-
gineering for their planned purpose and
shall be certified by a licensed engineer
prior to being permitted.

(F) (G) Shoreline erosion control projects
shall not be constructed in beach or
estuarine areas that sustain substantial
habitat for important wildlife species un-
less adequate mitigation measures are in-
corporated into project design, as set forth
in Rule .0306(i) of this Section.

(G) fH} Project construction shall be timed
to have minimum significant adverse ef-
fect on biological activity.
(H) (I) The applicant shall notify all littoral
property owners within 100' of the
boundaries of the project site and no per-
mit shall be issued until the property
owner(s) has signed the notice form or
until a reasonable effort has been made to
serve notice on the owner(s) by registered
or certified mail.
(1) (J) All oceanfront erosion control
projects shall be consistent with the gen-
eral policy statements in 15A NCAC 7M
.0200.
(J) f+r) Prior to beginning any beach
nourishment or structural erosion control
project, all exposed remnants of or debris
from failed erosion control structures
must be removed by the permittee.
(K) ft*) All permitted erosion control de-
vices shall be marked so as to allow iden-
tification for monitoring and potential
cleanup purposes.
(L) {M} Erosion control structures that
would otherwise be prohibited by these
standards may be permitted on finding
that:

(i) the erosion control structure is neces-
sary to protect a bridge which provides
the only existing road access to a sub-
stantial population on a barrier island;
that is vital to public safety; and is
imminently threatened by erosion;
(ii) the preferred erosion control meas-
ures of relocation, beach nourishment
or temporary stabilization are not ade-
quate to protect public health and
safety; and
(iii) the proposed erosion control meas-
ure will have no adverse impacts on
adjacent properties in private ownership
and will have minimal impacts on pub-
lic use of the beach.
(2) Temporary Erosion Control Structures

(A) Permittable temporary erosion control
structures include only the following:

(i) Bulkheads or similar structures made
of sandbags or comparable materials;

(ii) Low sandbag groins or sandbag
sediment trapping structures above
mean high water provided they are
continuously buried by suitable sand
from an outside source.

(B) Temporary erosion control structures
as denned in (A) of this Paragraph may
be used only to protect imminently
threatened structures. Normally, a struc-

7:7 NORTH CAROLINA REGISTER July I, 1992

656

PROPOSED RULES

ture will be considered to be imminently
threatened if its foundation is less than 20
feet away from the erosion scarp.

(C) Shore-parallel temporary erosion con-
trol structures must not extend more than
20 feet past the end of the structure to be
protected. The erosion control structure
also must not come closer than 15 feet to
the applicant's side property lines unless
the application is part of a joint project
with neighbors trying to protect similarly
threatened structures or unless the appli-
cant has written permission from the af-
fected property owner. The landward side
of such temporary erosion control struc-
tures shall not be located more than 20
feet seaward of the property to be pro-
tected.

(D) If a temporary erosion control structure
interferes with public access and use of the
ocean beach, or if it requires burial but
remains continuously exposed for more
than six months it must be removed by
the permittee within 30 days of notifica-
tion by the Coastal Resources Commis-
sion or its representatives. In addition,
the permittee shall be responsible for the
removal of remnants of all or portions of
the temporary erosion control structure
damaged by storms or continued erosion.

(E) Once the temporary erosion control
structure is determined to be unnecessary
due to a natural reversal of the eroding
condition, relocation of the threatened
structure, or adoption of an alternate ero-
sion control method, any remnants of the
temporary erosion control structure ex-
posed seaward of or on the beach must
be removed by the permittee within 30
days of notification by the Coastal Re-
sources Commission or its representatives.

(F) Temporary sandbag bulkheads
permittable by this Rule shall be of a size
and configuration consistent with their al-
lowed purpose. Such structures may be
appropriately anchored and shah not ex-
ceed a width at their base of three
sandbags or a maximum of fifteen feet.
In no case shall the structure extend below
the mean high water line.

(3) Sand-Trapping Devices: Low intensity
off-shore passive sand-trapping devices
may be permitted provided:
(A) A minimum of two signs no smaller
than 12 inches x 18 inches will be placed
and maintained on poles on the ocean
beach at least 6' above ground level that
will indicate to fishermen, surfers and

bathers that the structures or devices are
present offshore.

(B) The structures or devices will be re-
moved at the expense of the applicant
should they be documented as a nuisance
to private property or to the public well
being. "Nuisance" will be defmed as any
interference with reasonable use of public
trust waters or the ocean beaches for nav-
igation, swimming, fishing, sunbathing,
or other recreational uses.

(C) The structures or devices will be aligned
no closer than 450 feet seaward of the first
line of stable natural vegetation or 300 feet
from the mean high water line, whichever
is further seaward.

(4) Beach Nourishment. Sand used for beach
nourishment should be compatible with
existing grain size and type. Sand to be
used for beach nourishment shall be taken
only from those areas where the resulting
environmental impacts will be minimal.

(5) Beach Bulldozing. Beach bulldozing (de-
fined as the process of moving natural
beach material from any point seaward of
the first line of stable vegetation to create
a protective sand dike or to obtain mate-
rial for any other purpose) is development
and may be permitted as an erosion con-
trol measure if the following conditions
are met:

(A) The area on which this activity is being
performed must maintain a slope of ade-
quate grade so as to not endanger the
public or the public's use of the beach and
should follow the pre-emergency slope as
closely as possible. The movement of
material utilizing a bulldozer, front end
loader, backhoe, scraper, or any type of
earth moving or construction equipment
should not exceed one foot in depth
measured from the pre-activity surface el-
evation;

(B) The activity must not exceed the lateral
bounds of the applicant's property unless
he has permission of the adjoining land
owner(s);

(C) Movement of material from seaward
of the low water line will require a CAMA
Major Development and State Dredge
and Fill Permit;

(D) The activity must not significantly in-
crease erosion on neighboring properties
and must not have a significant adverse
effect on important natural or cultural re-
sources;

(E) The activity may be undertaken to
protect threatened on-site waste disposal

65 ~

7:7 NORTH CAROLINA REGISTER July I, 1992

PROPOSED RULES

systems as well as the threatened struc-
ture's foundations,
(b) Dune Establishment and Stabilization.
Activities to establish dunes shall be allowed so
long as the following conditions are met:

(1) Any new dunes established shall be aligned
to the greatest extent possible with exist-
ing adjacent dune ridges and shall be of
the same general configuration as adjacent
natural dunes.

(2) Existing primary and frontal dunes shall
not, except for beach nourishment and
emergency situations, be broadened or
extended in an oceanward direction.

(3) Adding to dunes shall be accomplished in
such a manner that the damage to existing
vegetation is minimized. The filled areas
will be immediately replanted or tempo-
rarily stabilized until planting can be suc-
cessfully completed.

(4) Sand used to establish or strengthen dunes
must be brought » from a source outsid e
the ocoan hazard area a»4 must be e£ the

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which k- is te- be placed, of the same
general characteristics as the sand in the
area in which it is to be placed.

(5) No new dunes shall be created in inlet
hazard areas.

\ \j j x. i iui _hji iu iiLiu u i jil'iu n. 1 err u_i it \j nn uini.1

than frontal &f primary duneo may- be
moved laterally » order te- strengthen e*-

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um rsr pTTCTmrT rr 1 1 v .' i i i ui u lxi h. j it ii iv tt^ttxc

would enhance the protection te- the pro
posed development activity. Sand held in
storage in any dune, other than the frontal
or primary dune, may be redistributed
within the AEC provided that it is not
placed any farther oceanward than the
crest of a pnmarv dune or landward toe
of a frontal dune.
(7) No disturbance of a dune area will be al-
lowed when other techniques of con-
struction can be utilized and alternative
site locations exist to avoid unnecessary
dune impacts,
(c) Structural Accessways

(1) Structural accessways shall be permitted
across primary dunes so long as they are
designed and constructed in a manner
which entails negligible alteration on the
primary dune. Structural accessways may
not be considered threatened structures
for the purpose of Paragraph (a) of this
Rule.

(2) An accessway shall be conclusively pre-
sumed to entail negligible alteration of a
primary dune if:

(A) The accessway is exclusively for pedes-
trian use;

(B) The accessway is less than six feet in
width; and

(C) The accessway is raised on posts or
pilings of five feet or less depth, so that
wherever possible only the posts or pilings
touch the frontal dune. Where this is
deemed impossible, the structure shall
touch the dune only to the extent abso-
lutely necessary. In no case shall an
accessway be permitted if it will diminish
the dune's capacity as a protective barrier
against flooding and erosion; and

(D) Any areas of vegetation that are dis-
turbed are re vegetated as soon as feasible.

(3) An accessway which does not meet (2)(A)
and (B) of this Paragraph shall be per-
mitted only if it meets a public purpose
or need which cannot otherwise be met
and it meets (2)(C) of this Paragraph.
Public fishing piers shall not be deemed
to be prohibited by this Rule, provided
all other applicable standards are met.

(4) In order to avoid weakening the protective
nature of primary and frontal dunes a
structural accessway (such as a "Hatteras
ramp") should be provided for any off-
road vehicle (ORV) or emergency vehicle
access. Such accessways should be no
greater than ten feet in width and should
be constructed of wooden sections fas-
tened together over the length of the af-
fected dune area.

(d) Construction Standards. New construction
and substantial improvements (increases of 50
percent or more in value on square footage) to
existing construction shall comply with the fol-
lowing standards:

(1) In order to avoid unreasonable danger to
life and property, all development shall be
designed and placed so as to miriirnize
damage due to fluctuations in ground ele-
vation and wave action in a 100 year
storm. Any building constructed within
the ocean hazard area shall comply with
the North Carolina Building Code in-
cluding the Coastal and Flood Plain
Construction Standards, Chapter 34, Vol-
ume 1 or Section 39, Volume 1-B and the
local flood damage prevention ordinance
as required by the National Flood Insur-
ance Program. If any provision of the
building code or a flood damage pre-
vention ordinance is inconsistent with any
of the following AEC standards, the more
restrictive provision shall control.

7:7 NORTH CAROLINA REGISTER July I, 1992

658

PROPOSED RULES

(2) All structures in the ocean hazard area
shall be on pilings not less than eight
inches in diameter if round or eight inches
to a side if square.

(3) All pilings shall have a tip penetration
greater than eight feet below the lowest
ground elevation under the structure. For
those structures so located on the primary
dune or nearer to the ocean, the pilings
must extend to five feet below mean sea
level.

(4) All foundations shall be adequately de-
signed to be stable during applicable fluc-
tuations in ground elevation and wave
forces during a 100 year storm.
Cantilevered decks and walkways shall
meet this standard or shall be designed to
break-away without structural damage to
the main structure.

Statutory A uthority

H3A-107(b);

1 13 A- 1 24.

G.S. I13A-I07(a);
113A-113(b)(6)a.,b.,d.;

.0310 USE STANDARDS FOR INLET
HAZARD AREAS

(a) Inlet areas as defined by Rule .0304 of this
Section are subject to inlet migration, rapid and
severe changes in watercourses, flooding and
strong tides. Due to this extremely hazardous
nature of the inlet hazard areas, all development
within these areas shall be located in accordance
with the following standards:

(1) All development in the inlet hazard area
shall be set back from the first line of sta-
ble natural vegetation a distance equal to
the setback required in the adjacent ocean
hazard area;

(2) Permanent structures shall be permitted
at a density of no more than one com-
mercial or residential unit per 15,000
square feet of land area on lots subdivided
or created after July 23, 1981;

(3) Only residential structures of four units
or less or non-residential structures of less
than 5,000 square feet total floor area shall
be allowed within the inlet hazard area;

(4) Established common-law and statutory
public rights of access to the public trust
lands and waters in inlet hazard areas shall
not be eliminated or restricted. Develop-
ment shall not encroach upon public
accessways nor shall it limit the intended
use of the accessways;

(4} Shoreline stabilization structures shall b<*
permitted only as a part ef a publicly
supported proj e ct;

(5) (4) All other rules in this Subchapter per-
taining to development in the ocean haz-
ard areas shall be applied to development
within the inlet hazard areas;
(b) The types of development exempted from
the ocean setback rules in Rule .0309(a) of this
Section shall also be exempt from these inlet
hazard area setback requirements.

Statutory Authority

1I3A-I13(b); 113A-I24.

G.S.

113A-107;

******************

iV otice is hereby given in accordance with G.S.
150B-21 .2 that the EHNR - Commission for
Health Services intends to amend rule(s) cited as
ISA NCAC 13A .0001, .0009 - .0010; 13B .1204;
ISA .1016; 18C .1507, .1607, .1614; 25 .0213;
repeal rule(s) cited as 21C .0201 - .0207.

1 he proposed effective date of this action is Oc-
tober 1, 1992.

1 he public hearing will be conducted at 1:30
p.m. on July 22, 1992 at the Archives and History
Bldg., (First Floor Auditorium), 109 E. Jones St.,
Raleigh, N.C.

easons for Proposed Actions:

15A NCAC 13A .0001 - To comply with G.S. 150B
regarding publication costs and mailing list fees.

15A NCAC I3A .0009 - .0010 - These amendments
add new requirements for owners and operators
of hazardous waste surface impoundments, waste
piles, and landfills to install and operate leak de-
lection systems at such time as these units are
added, laterally expanded, or replaced. Most of
these Rules are in response to the requirements of
the 1984 Hazardous and Solid Waste Amend-
ments (HSWA) to RCRA.

ISA NCAC 13B .1204 - This amendment is pursu-
ant to a rule-making petition.

ISA NCAC 18A .1016 - 7o clarify requirements for
existing dormitories and new construction in sum-
mer camps; and to lower the amount of floor
space for a child.

ISA NCAC I8C .1507 - These amendments are
needed to revise the rule title and to meet the
federal primacy requirements to implement 40

659

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

CFR 141.80 through 141.91, which are the new
lead and copper control regulations.

I5A NCAC 18C .1607 - Is proposed for amendment
to meet the federal primacy requirements for im-
plementing the lead and copper rules.

15A NCAC 18C .1614 - Is proposed for amendment
to meet the federal primacy requirements.

15A NCAC 21C .020! - .0207 - This is a request to
repeal "Local Health Department Delivery
Funds" program rules. These are no longer allo-
cated to local health departments. An increase in
Medicaid eligibility to 185 percent of the federal
poverty level resulted in these funds no longer be-
ing necessary to provide delivery services to non-
Medicaid eligible women. The percentage of
non-Medicaid eligible women receiving obstetrical
services remains small.

15A NCAC 25 .0213 - This amendment is to set the
mandatory inspection frequency for Bed and
Breakfast Inns to 1 16 months and to delete un-
necessary language involving meat markets.

Comment Procedures: All persons interested in
these matters are invited to attend the public
hearing. Written comments may be presented at
the public hearing or submitted to John P.
Barklev, Department of Justice, P.O. Box 629,
Raleigh, NC 27602-0629, (919) 733-46/8. If you
desire to speak at the public hearing, notify John
P. Barkley at least three days prior to the public
hearing. Oral presentation lengths shall be limited
depending on the number of people that wish to
speak at the public hearing. Only persons who
have made comments at a public hearing or who
have submitted written comments will be allowed
to speak at the Commission meeting. Comments
made at the Commission meeting must either
clarify previous comments or address proposed
changes from staff pursuant to comments made
during the public hearing process.

IT IS VERY IMPORT AST THAT ALL IN-
TERESTED AMD POTENTIALLY AF-
FECTED PERSONS, GROUPS,
BUSINESSES, ASSOCIATIONS, INSTI-
TUTIONS. OR AGENCIES MAKE THEIR
VIEWS AND OPINIONS KNOWN TO THE
COMMISSION FOR HEALTH SERVICES
THROUGH THE PUBLIC HEARING AND
COMMENT PROCESS, WHETHER THEY
SUPPORT OR OPPOSE ANY OR ALL PRO-
VISIONS OF THE PROPOSED RULES. THE
COMMISSION MAY MAKE CHANGES TO
THE RULES AT THE COMMISSION MEET-

ING IF THE CHANGES COMPLY WITH G.S.
l50B-21.1(f).

CHAPTER 13 - SOLID WASTE MANAGEMENT

SUBCHAPTER 13A - HAZARDOUS WASTE
MANAGEMENT

.0001 GENERAL

(a) The Hazardous Waste Section of the Solid
Waste Management Division shall administer the
hazardous waste management program for the
State of North Carolina.

(b) In applying the federal requirements incor-
porated by reference throughout this Subchapter,
the following substitutions or exceptions shall
apply:

( 1 ) " Department of Environment, I lealth, and
Natural Resources" shall be substituted
for "Environmental Protection Agency"
except in 40 CFR 262.51 through 262.54,
262.56, 262.57 where references to the
Environmental Protection Agency shall
remain without substitution;

(2) "Secretary of the Department of Environ-
ment, Health, and Natural Resources"
shall be substituted for "Administrator,"
"Regional Administrator" and "Director"
except for 40 CFR 262.55 through 262.57,
264.12(a), 268.5, 268.6, 268.42(b) and
268.44 where the references to the Ad-
ministrator, Regional Administrator, and
Director shall remain without substi-
tution; and

(3) An "annual report" shall be required for
all hazardous waste generators, treaters,
storers, and disposers rather than a
"biennial report".

(c) 40 CFR 260.1 through 260.3 (Subpart A),
"General," have been adopted incorporated by
reference m accordance with G.S. 150B 11(c).
including subsequent amendments and editions.

(d) 40 CFR 260.11, "References", has been
adopted incorporated by reference » accordance
with G.S. 1501? 1 l(o). including subsequent
amendments and editions.

(e} Copioo ef a4J mat e rial adopted by reference
» tk» Subchapt e r may be insp e ct e d m me See-
riea Office, 444- Oborlin R-ea4r P^, ite>* ¥tt&h
Raleigh, NC. 2761 1. Copies may be obtained

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(e) Copies of all materials in this Subchapter
may be inspected or obtained as follows:

( 1) Persons interested in receiving rule-making
notices concerning the North Carolina
1 la/.ardous Waste Management Rules
must submit a written request to the
Hazardous Waste Section. P.O. Box
27687, Raleigh, N.C. 27611-7687. A

7:7 NORTH CAROLINA REGISTER July 1, 1992

660

PROPOSED RULES

check in the amount of fifteen dollars
(SI 5.00) made payable to The Hazardous
Waste Section must be enclosed with each
request. Upon receipt of each request,
individuals will be placed on a mailing list
to receive notices for one year.

(2) Material incorporated by reference in the
Federal Register mav be obtained from
the Supenntendent of Documents, U.S.
Government Printing Office, Washington,
DC. 20402 at a cost of three hundred and
forty dollars ($340.00) per year. Federal
Register materials are codified once a year
in the Code of Federal Regulations and
may be obtained at the above address for
a cost of: 40 CFR 1-51 thirty seven dol-
lars ($37.00). 40 CFR 260-299 forty dol-
lars ($40.00) and 40 CFR 100-149 forty
dollars ($40.00), total one hundred and
seventeen dollars ($117.00).

(3) Ihe North Carolina Hazardous Waste
Management Rules, including the incor-
porated bv reference materials, may be
obtained from the Hazardous Waste Sec-
tion at a cost of sixteen dollars ($16.00).

(4) All matenal is available for inspection at
the Department of Fnvironment, Health,
and Natural Resources, Hazardous Waste
Section, 401 Obcrlin Road, Raleigh, N.C.

Statutory Authority G.S. 130A-294(c).

.0009 STANDARDS FOR OWNERS/OPERATORS
OF HWTSD FACILITIES - PART 264

(a) Any person who treats, stores or disposes
of hazardous waste shall comply with the re-
quirements set forth in this Section. The treat-
ment, storage or disposal of hazardous waste is
prohibited except as provided in this Section.

(b) 40 CFR 264.1 through 264.4 (Subpart A),
"General", have been adopted incorporated by
reference m accordance with G.S. 150B M(c).
including subsequent amendments and additions.

(c) 40 CFR 264.10 through 264.18 (Subpart
B), "General Facility Standards", have been
adopted incorporated by reference » accordance
with G.S. 150B M(c). including subsequent
amendments and additions.

(d) 40 CFR 264.30 through 264.37 (Subpart
C), "Preparedness and Prevention", have been
adopted incorporated by reference » accordanc e
with G-&r 1501? 1 1(c). including subsequent
amendments and additions.

(e) 40 CFR 264.50 through 264.56 (Subpart
D), "Contingency Plan and Emergency Proce-
dures", have been adopted incorporated by ref-
erence m accordanc e wftk G-£r 150B M(c).
including subsequent amendments and additions.

(f) 40 CFR 264.70 through 264.77 (Subpart
E), "Manifest System, Recordkeeping, and Re-
porting", have been adopted incorporated by
reference » accordanc e witk G.S. 150B U(g).
including subsequent amendments and additions.

(g) 40 CFR 264.90 through 264.101 (Subpart
F), "Releases From Solid Waste Management
Units", have been adoptod incorporated by ref-
erence » accordance with G.S. 150B l'l(c). in-
cluding subsequent amendments and additions.
For the purpose of this adoption incorporation
bv reference, "January 26, 1983" shall be substi-
tuted for "July 26, 1982" contained in 40 CFR
264.90(a)(2).

(h) 40 CFR 264.110 through 264.120 (Subpart
G), "Closure and Post-Closure", have been
adoptod incorporated by reference m accordance)
with G.S. 150B 14(c). including subsequent
amendments and additions.

(i) 40 CFR 264.140 through 264.151 (Subpart
H), "Financial Requirements", have been
adopted incorporated by reference » accordance
vriik Gt&t 150B 14(c), including subsequent
amendments and additions, except that 40 CFR
264.143(a)(3), (a)(4), (a)(5), (a)(6), 40 CFR
264.145(a)(3), (a)(4), (a)(5), and 40 CFR
264.151(a)(1), Section 15 are not adopted incor-
porated by reference.

(1) Ihe following shall be substituted for the
provisions of 40 CFR 264.143(a)(3) which
were not adoptod incorporated by refer-
ence:

The owner or operator shall deposit the
full amount of the closure cost estimate
at the time the fund is established. Within
1 year of the effective date of these regu-
lations, an owner or operator using a clo-
sure trust fund established prior to the
effective date of these regulations shall
deposit an amount into the fund so that
its value after this deposit at least equals
the amount of the current closure cost es-
timate, or shall obtain other financial as-
surance as specified in this Section.

(2) The following shall be substituted for the
provisions of 40 CFR 264.143(a)(6) which
were not adoptod incorporated by refer-
ence:

661

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

its value after this deposit at least equals
the amount of the current closure cost
estimate, or obtain other financial assur-
ance as specified in this section to cover
the difference.

(3) The following shall be substituted for the
provisions of 40 CFR 264.145(a)(3) which
were not adopted incorporated by refer-
ence:

(A) Except as otherwise provided in Para-
graph (i)(3)(B) of this Section, the owner
or operator shall deposit the full amount
of the post-closure cost estimate at the
time the fund is established.

(B) If the Department finds that the owner
or operator of an inactive hazardous waste
disposal unit cannot provide financial as-
surance for post-closure through any
other option (e.g. surety bond, letter of
credit, or corporate guarantee), a plan for
annual payments to the trust fund over
the term of the RCRA post-closure per-
mit may be established by the Department
as a permit condition.

(4) The following additional requirement shall
apply:

The trustee shall notify the Department
of payment to the trust fund, by certified
mall within ten days following said pay-
ment to the trust fund. The notice shall
contain the name of the Grantor, the date
of payment, the amount of payment, and
the current value of the trust fund,
(j) 40 CFR 264.170 through 264.178 (Subpart
I), "Use and Management of Containers", have
been adopted incorporated by reference i» ae-
cordanco wrth G-^vr 13 <> B M(o)

including sub-
sequent amendments and additions.

(k) 40 CFR 264.190 through 264.199 (Subpart
J), "Tank Systems", have been adopted incorpo-
rated by reference » accordances with G.S.
150B 11(c). including subsequent amendments
and additions.

(1) The following are requirements for Surface
Impoundments:

(1) 40 CFR 264.220 through 264.231 (Subpart
K), "Surface Impoundments", have been
adopted incorporated by reference » ac-
cordance wrth G.S. 150B 14(c). including
subsequent amendments and additions.

(2) The following are additional standards for
surface impoundments:

(A) The liner system shall consist of at least
two liners;

(B) Artificial liners shall be equal to or
greater than 30 mils in thickness;

maximum permeability of 1.0 x 10-7
cm/sec;

(D) Clayey liner soils shall have the same
characteristics as described in (r)(4)(B)(ii),
(iii), (iv), (vi) and (vii) of this Rule;

(E) A leachate collection system shall be
constructed between the upper liner and
the bottom liner;

(F) A leachate detection system shall be
constructed below the bottom liner; and

(G) Surface impoundments shall be con-
structed in such a manner to prevent
landsliding, slippage or slumping.

(m) 40 CFR 264.250 through 264.259 (Subpart
L), "Waste Piles", have been adopted incorpo-
rated by reference » accordance) with G.S.
150B l ' 1(c). including subsequent amendments
and additions.

(n
M)

40 CFR 264.270 through 264.283 (Subpart
'Land Treatment", have been adopt e d in-
corporated by reference m accordanc e with G.S.
150B 14(c). including subsequent amendments
and additions.
(o)
N)

40 CFR 264.300 through 264.317 (Subpart
'Landfills", have been adopted incorporated
by reference » accordance with- G-£r 150B 1 1(c).
including subsequent amendments and additions.
(p) A long-term storage facility shall meet
groundwater protection, closure and post-
closure, and financial requirements for disposal
facilities as specified in Paragraphs (g), (h), and
(i) of this Rule.
(q) 40 CFR 264.340 through 264.351 (Subpart
O), "Incinerators", have been adopt e d incorpo-
rated by reference m accordance with G.S.
150B 14(c). including subsequent amendments
and additions.

(r) The following are additional location
standards for facilities:

(1) In addition to the location standards set
forth in 15A NCAC 13A .0009(c), the
Department, in determining whether to
issue a permit for a hazardous waste
management facility, shall consider the
risks posed by the proximity of the facility
to water table levels, flood plains, water
supplies, public water supply watersheds,
mines, natural resources such as wetlands,
endangered species habitats, parks, forests,
wilderness areas, and historical sites, and
population centers and shall consider
whether provision has been made for ad-
equate buffer zones. The Department
shall also consider ground water travel
time, soil pH, soil cation exchange capac-
ity, soil composition and permeability,
slope, climate, local land use, transporta-
tion factors such as proximity to waste

7:7 NORTH CAROLINA REGISTER July I, 1992

662

PROPOSED RULES

generators, route, route safety, and
method of transportation, aesthetic factors
such as the visibility, appearance, and
noise level of the facility; potential impact
on air quality, existence of seismic activity
and cavernous bedrock.
(2) The following minimum separation dis-
tances shall be required of all hazardous
waste management facilities except that
existing facilities shall be required to meet
these minimum separation distances to
the maximum extent feasible:

(A) All hazardous waste management facil-
ities shall be located at least 0.25 miles
from institutions including but not limited
to schools, health care facilities and pris-
ons, unless the owner or operator can
demonstrate that no unreasonable risks
shall be posed by the proximity of the fa-
cility.

(B) All hazardous waste treatment and
storage faculties shall comply with the
following separation distances: all hazard-
ous waste shall be treated and stored a
minimum of 50 feet from the property line
of the facility; except that all hazardous
waste with ignitable, incompatible or re-
active characteristics shall be treated and
stored a minimum of 200 feet from the
property line of the facility if the area ad-
jacent to the facility is zoned for any use
other than industrial or is not zoned.

(C) All hazardous waste landfills, long-term
storage faculties, land treatment facilities
and surface impoundments, shall comply
with the following separation distances:
(i) All hazardous waste shall be located

a minimum of 200 feet from the prop-
erty line of the facility;

(ii) Each hazardous waste landfill, long-
term storage or surface impoundment
facility shall be constructed so that the
bottom of the facility is 10 feet or more
above the historical high ground water
level. The historical high ground water
level shall be determined by measuring
the seasonal high ground water levels
and predicting the long-term maximum
high ground water level from published
data on similar North Carolina
topographic positions, elevations,
geology, and climate; and

(ui) /Ml hazardous waste shall be located
a minimum of 1,000 feet from the zone
of influence of any existing off-site
ground water well used for drinking
water, and outside the zone of influence

of any existing or planned on-site
drinking water well.
(D) Hazardous waste storage and treatment
facilities for liquid waste that is classified
as TC toxic, toxic, or acutely toxic and is
stored or treated in tanks or containers
shall not be located:

(i) in the recharge area of an aquifer
which is designated as an existing sole
drinking water source as defmed in the
Safe Drinking Water Act, Section
.1424(e) [42 U.S.C. 300h-3(e)| unless an
adequate secondary containment sys-
tem is constructed, and after consider-
ation of applicable factors in (r)(3) of
this Rule, the owner or operator can
demonstrate no unreasonable risk to
public health;
(ii) within 200 feet of surface water
impoundments or surface water stream
with continuous flow as defined by the
United States Geological Survey;
(iii) in an area that will allow direct sur-
face or subsurface discharge to WS-I,
WS-II or SA waters or a Class III Res-
ervoir as defined in 4-£ 15A NCAC 2B
.0200 and 44 NCAC 44» .0702(6); 15A
NCAC 18C .0102;
(iv) in an area that will allow direct sur-
face or subsurface discharge to the
watershed for a Class I or II Reservoir
as defined in 44 NCAC 44D 4TO2 (4)
and f^t 15A NCAC 18C .0102;
(v) within 200 feet horizontally of a

100-year floodplain elevation;
(vi) within 200 feet of a seismically active

area as defined in (c) of this Rule; and
(vii) within 200 feet of a mine, cave, or
cavernous bedrock.
(3) The Department may require any hazard-
ous waste management facility to comply
with greater separation distances or other
protective measures necessary to avoid
unreasonable risks posed by the proximity
of the facility to water table levels, flood
plains, water supplies, public water supply
watersheds, mines, natural resources such
as wetlands, endangered species habitats,
parks, forests, wilderness areas, and his-
torical sites, and population centers or to
provide an adequate buffer zone. The
Department may also require protective
measures necessary to avoid unreasonable
risks posed by the soil pH, soil cation ex-
change capacity, soil composition and
permeability, climate, transportation fac-
tors such as proximity to waste genera-
tors, route, route safety, and method of

663

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

transportation, aesthetic factors such as
the visibility, appearance, and noise level
of the facility, potential impact on air
quality, and the existence of seismic ac-
tivity and cavernous bedrock. In deter-
mining whether to require greater
separation distances or other protective
measures, the Department shall consider
the following factors:

(A) All proposed hazardous waste activities
and procedures to be associated with the
transfer, storage, treatment or disposal of
hazardous waste at the facility;

(B) The type of hazardous waste to be
treated, stored, or disposed of at the facil-
ity;

(D) Land use issues including the number
of permanent residents in proximity to the
facility and their distance from the facility;

(E) The adequacy of facility design and
plans for containment and control of
sudden and non-sudden accidental events
in combination with adequate off-site
evacuation of potentially adversely im-
pacted populations;

(F) Other land use issues including the
number of institutional and commercial
structures such as airports and schools in
proximity to the facility, their distance
from the facility, and the particular nature
of the activities that take place in those
structures;

(G) The lateral distance and slope from the
facility to surface water supplies or to
watersheds draining directly into surface
water supplies;

(H) The vertical distance, and type of soils
and geologic conditions separating the fa-
cility from the water table;

(I) The direction and rate of flow of ground
water from the sites and the extent and
reliability of on-site and nearby data con-
cerning seasonal and long-term
groundwater level fluctuations;

(J) Potential air emissions including rate,
direction of movement, dispersion and
exposure whether from planned or acci-
dental, uncontrolled releases; and

(K) Any other relevant factors.
(4) The following are additional location
standards for landfills, long-term storage
facilities and hazardous waste surface
impoundments:

(A) A hazardous waste landfill, long-term
storage, or a surface impoundment facility
shall not be located:

(i) m In the recharge area of an aquifer
which is an existing sole drinking water
source;

(ii) within Within 200 feet of a surface
water stream with continuous flow as
defined by the United States Geological
Survey;

(iii) m In an area that will allow direct
surface or subsurface discharge to WS-I,
WS-II or SA waters or a Class III Res-
ervoir as defined in 44 15A NCAC 2B
.0200 and 444 NCAC 444© .0702(6); 15A
NCAC 18C .0102;

(iv) » In an area that will allow direct
surface or subsurface discharge to a
watershed for a Class I or II Reservoir
as defined in 444 NCAC 444© .0702(1)
aft4f4>H 15A NCAC 18C .0102;

(v) within Within 200 feet horizontally of
a 100-year flood hazard elevation;

(vi) within Within 200 feet of a seismically
active area as defined in (c) of this Rule;
and

(vii) within Within 200 feet of a mine,
cave or cavernous bedrock.

(B) A hazardous waste landfill or long-term
storage facility shall be located in highly
weathered, relatively impermeable clayey
formations with the following soil charac-
teristics:

(i) The depth of the unconsolidated soil
materials shall be equal to or greater
than 20 feet;

(ii) The percentage of fifie grained fine-
grained soil material shall be equal to
or greater than 30 percent passing
through a number 200 sieve;

(in) Soil liquid limit shall be equal to or
greater than 30;

(iv) Soil plasticity index shall be equal to
or greater than 15;

(v) Soil compacted hydraulic

conductivity shall be a maximum of 1.0
x 10-7 cm/sec;

(vi) Soil Cation Exchange Capacity shall
be equal to or greater than 5 millie-
quivalents per 100 grams;

(vii) Soil Potential Volume Change Index
shall be equal to or less than 4; and

(viii) Soils shall be underlain by a com-
petent geologic formation having a rock
quality designation equal to or greater
than 75 percent unless other geological
conditions afford adequate protection
of public health and the environment.

(C) A hazardous waste landfill or long-term
storage facility shall be located in areas of
low to moderate relief to the extent nec-

7:7 NORTH CAROLINA REGISTER July 1, 1992

664

PROPOSED RULES

essary to prevent landsliding or slippage
and slumping. The site may be graded to
comply with this standard.

(5) All new hazardous waste impoundments
that close with hazardous waste residues
left in place shall comply with the stand-
ards for hazardous waste landfills in (r)(4)
of this Rule unless the applicant can
demonstrate that equivalent protection of
public health and environment is afforded
by some other standard.

(6) The owners and operators of all new haz-

ardous waste management facilities shall
construct and maintain a minimum of two
observation wells, one upgradient and one
downgradient of the proposed facility; and
shall establish background groundwater
concentrations and monitor annually for
all hazardous wastes that the owner or
operator proposes to store, treat, or dis-
pose at the facility.

(7) The owners and operators of all new haz-
ardous waste facilities shall demonstrate
that the community has had an opportu-
nity to participate in the siting process by
complying with the following:

(A) The owners and operators shall hold
at least one public meeting in the county
m which the facility is to be located to
inform the community of all hazardous
waste management activities including but
not limited to: the hazardous properties
of the waste to be managed; the type of
management proposed for the wastes; the
mass and volume of the wastes; and the
source of the wastes; and to allow the
community to identify specific health,
safety and environmental concerns or
problems expressed by the community
related to the hazardous waste activities
associated with the facility. The owners
and operators shall provide a public notice
of this meeting at least 30 days prior to the
meeting. Public notice shall be docu-
mented in the facility permit application.
The owners and operators shall submit as
part of the permit application a complete
written transcript of the meeting, all writ-
ten material submitted that represents
community concerns, and all other rele-
vant written material distributed or used
at the meeting. The written transcript and
other written material submitted or used
at the meeting shall be submitted to the
local public library closest to and in the
county of the proposed site with a request
that the information be made available to
the public.

(B) For the purposes of this Rule, public
notice shall include: notification of the
boards of county commissioners of the
county where the proposed site is to be
located and all contiguous counties in
North Carolina; a legal advertisement
placed in a newspaper or newspapers
serving those counties; and provision of a
news release to at least one newspaper,
one radio station, and one TV station
serving these counties. Public notice shall
include the time, place, and purpose of the
meetings required by this Rule.

(C) No less than 30 days after the first
public meeting transcript is available at
the local public library, the owners and
operators shall hold at least one additional
public meeting in order to attempt to re-
solve community concerns. The owners
and operators shall provide public notice
of this meeting at least 30 days prior to the
meeting. Public notice shall be docu-
mented in the facility permit application.
The owners and operators shall submit as
part of the permit application a complete
wntten transcript of the meeting, all writ-
ten material submitted that represents
community concerns, and all other rele-
vant written material distributed or used
at the meeting.

(D) The application, written transcripts of
all public meetings and any additional
material submitted or used at the
meetings, and any additions or corrections
to the application, including any re-
sponses to notices of deficiencies shall be
submitted to the local library closest to
and in the county of the proposed site,
with a request that the information be
made available to the public until the
permit decision is made.

(E) The Department shall consider unre-
solved community concerns in the permit
review process and impose final permit
conditions based on sound scientific,
health, safety, and environmental princi-
ples as authorized by applicable laws or
rules.

(s) 40 CFR 264.570 through 264.575 (Subpart
Wj, "Drip Pads", have been incorporated by
reference including subsequent amendments and
editions.

(t) 40 CFR 264.600 through 264.603 (Subpart
X), "Miscellaneous Units", have been incorpo-
rated by reference including subsequent amend-
ments and editions.

(u) 40 CFR 264.1030 through 264.1049 (Sub-
part AA), "Air Emission Standards for Process

665

SORTH CAROLIXA REGISTER July I, 1992

PROPOSED RULES

Vents", have been incorporated by reference in-
cluding subsequent amendments and editions.

(v) 40 CFR 264.1050 through 264.1079 (Sub-
part BB), "Air Emission Standards for Equip-
ment Leaks", have been incorporated by
reference including subsequent amendments and
editions.

(w) Appendices to 40 CFR Part 264 have been
incorporated by reference including subsequent
amendments and editions.

Statutory Authority G.S. 130A-294(c).

.0010 INTERIM STATUS STDS FOR

OWNERS-OP OF HWTSD FACILITIES
- PART 265

(a) 40 CFR 265.1 through 265.4 (Subpart A),
"General", have been adopted incorporated by
reference » accordanc e with G.S. 150B M(c).
including subsequent amendments and additions.

(b) 40 CFR 265.10 through 265.18 265.19
(Subpart B), "General Facility Standards", have
been adopted incorporated by reference » ac-
cordanc e with G.S. 150B 1 1(c). including sub-
sequent amendments and additions.

(c) 40 CFR 265.30 through 265.37 (Subpart
C), "Preparedness and Prevention", have been
adopted incorporated by reference » accordance
with G.S. 150B 11(c). including subsequent
amendments and additions.

(d) 40 CFR 265.50 through 265.56 (Subpart
D), "Contingency Plan and Emergency Proce-
dures", have been adopted incorporated by ref-
erence i» accordance with- Gt&t 150B 11(c).
including subsequent amendments and additions.

(e) 40 CFR 265.70 through 265.77 (Subpart
E), "Manifest System, Recordkeeping, and Re-
porting", have been adopted incorporated by
reference » accordance with- Grkr 150B 1 1(c).
including subsequent amendments and additions.

(f) 40 CFR 265.90 through 265.94 (Subpart
F), "Ground-Water Monitoring", have been
adopted incorporated by reference m accordance
with GtSt 150B M(c). including subsequent
amendments and additions.

(g) 40 CFR 265.110 through 265.120 (Subpart
G), "Closure and Post-Closure", have been
adopted incorporated by reference i» accordanc e
with GtSt 1 JOB M(c). including subsequent
amendments and additions.

(h) 40 CFR 265.140 through 265.151 (Subpart
H), "Financial Requirements", have been
adopted incorporated by reference m accordanc e
with GtSt 150B 14(c), including subsequent
amendments and additions, except that 40 CFR
265.143(a)(3), (a)(4), (a)(5), (a)(6), and 40 CFR
265.145(a)(3), (a)(4), (a)(5), are not adopted irv
corporated by reference.

(1) The following shall be substituted for the
provisions of 40 CFR 265.143(a)(3) which
were not adopted incorporated by refer-
ence:

(2) The following shall be substituted for the
provisions of 40 CFR 265.143(a)(6) which
were not adopted incorporated by refer-
ence:

After the trust fund is established, when-
ever the current closure cost estimate
changes, the owner or operator shall
compare the new estimate with the trus-
tee's most recent annual valuation of the
trust fund. If the value of the fund is less
than the amount of the new estimate, the
owner or operator within 60 days after the
change in the cost estimate, shall either
deposit an amount into the fund so that
its value after this deposit at least equals
the amount of the current closure cost es-
timate, or obtain other financial assurance
as specified in this Section to cover the
difference.

(3) The following shall be substituted for the
provisions of 40 CFR 265.145(a)(3) which
were not adopted incorporated by refer-
ence:

(A) Except as otherwise provided in Para-
graph (h)(3)(B) of this Section, the owner
or operator shall deposit the full amount
of the post -closure cost estimate at the
time the fund is established.

(B) If the Department finds that the owner
or operator of an inactive hazardous waste
disposal unit cannot provide financial as-
surance for post-closure through any
other option (e.g. surety bond, letter of
credit, or corporate guarantee), a plan for
annual payments to the trust fund during
the interim status period may be estab-
lished by the Department by use of an
Administrative Order.

(i) 40 CFR 265.170 through 265.177 (Subpart
I), "Use and Management of Containers", have
been adopted incorporated by reference » ae-
oordanco with G-rSr 150B 14(c). including sub-

7:7 NORTH CAROLINA REGISTER July I, 1992

666

PROPOSED RULES

sequent

amendments

and

additions.

Additionally, the owner or operator shall keep
records and results of required inspections for at
least three years from the date of the inspection.
(j) 40 CFR 265.190 through 265.201 (Subpart
J), "Tank Systems", have been adopted incorpo-
rated by reference m accordance wrth GrSr
15UB 1 l(c i . including subsequent amendments
and additions.

(k) 40 CFR 265.220 through 265.230 (Subpart
K). '"Surface Impoundments'', have been
adopted incorporated by reference » accordance
with Gt^t 150B 1 1(c). including subsequent
amendments and additions.

(1) 40 CFR 265.250 through 265.258 265.260
(Subpart L), "Waste Piles", have been adopted
incorporated by reference » accordance with
G.S. 1 SOB 1 1(c). including subsequent amend-
ments and additions.

(m) 40 CFR 265.270 through 265.282 (Subpart
M), ''Land Treatment", have been adopted in-
corporated by reference » accordance with G.S.
15uB 1 lie), including subsequent amendments
and additions.

(n) 40 CFR 265.300 through 265.316 (Subpart
N), "Landfills", have been adopted incorporated
by reference m accordance wrih Q»r 150B 14(c).
including subsequent amendments and additions.

(o) 40 CFR 265.340 through 265.352 (Subpart
O), "Incinerators", have been adopted incorpo-
rated by reference » accordance with G.S.
150B 1 1(c). including subsequent amendments
and additions.

(p) 40 CFR 265.370 through 265.383 (Subpart
P). "Thermal Treatment", have been adopted
incorporated by reference » accordanc e with
G.S. 150B M(c). including subsequent amend-
ments and additions.

(qi 40 CFR 265.400 through 265.406 (Subpart
Q). "Chemical, Physical, and Biological Treat-
ment", have been adopted incorporated by refer-
ence » accordance with G-£r 150B M(o).
including subsequent amendments and additions.

(r) 40 CFR 265.440 through 265.445 (Subpart
W), "Drip Pads", have been incorporated by
reference including subsequent amendments and
editions.

(s) 40 CFR 265.1030 through 265.1049 (Sub-
part AA), "Air Emission Standards for Process
Vents", have been incorporated by reference in-
cluding subsequent amendments and editions.

(t) 40 CFR 265.1050 through 265.1079 (Sub-
part BB). "Air Emission Standards for Equip-
ment Leaks" have been incorporated by reference
including subsequent amendments and editions.

(u) Appendices to 40 CFR Part 265 have been
incorporated by reference including subsequent
amendments and editions.

Statutory Authority G.S. l30A-294(c).

SUBCHAPTER 13B -SOLID WASTE
MANAGEMENT

SECTION .1200 - MEDICAL WASTE
MANAGEMENT

.1204 REQUIREMENTS FOR GENERATORS
OF REGULATED MEDICAL WASTE

(a) A person who ships Regulated medical
waste from the generating facility for off-site
treatment shall meet the following requirements:

(1) Regulated medical waste shall be packaged
in a minimum of one plastic bag placed
in a rigid fiberboard box, ef drum or other
rigid container in a manner that prevents
leakage of the contents. The plastic bag
shall be impervious to moisture and have
a strength sufficient to preclude ripping,
tearing or bursting the waste-filled bag
under normal conditions of usage and
handling. Each bag shall be constructed
of material of sufficient single thickness
strength to pass the 165-gram dropped
dart impact resistance test as prescribed
by Standard D 1709-91 of the American
Society for Testing and Materials, which
is incorporated by reference including
subsequent amendments and editions, and
certified by the bag manufacturer. A copy
is available for inspection at the Depart-
ment of Environment, Health, and Na-
tural Resources, Division of Solid Waste
Management, 401 Oberlin Road, Raleigh,
North Carolina. Copies may be requested
by mail at American Society for Testing
and Materials, 1916 Race Street,
Philadelphia, PA. 19103 or by calling
(215) 299-5400 for a cost of twelve dollars
($12.00) plus one dollar and fifty cents
($1.50) for shipping and handling unless
prepaid, then the fee is twelve dollars
($12.00).

(2) Regulated medical waste shall be stored in
a manner that maintains the integrity of
the packaging at all times.

(3) Each package of Regulated medical waste
shall be labeled with a water-resistant
universal biohazard symbol.

(4) Each package of Regulated medical waste
shall be marked on the outer surface with
the following information:

(A) the generator's name, address, and
telephone number:

(B) the transporter's name, address, and
telephone number;

66~

7:7 NORTH CAROLINA REGISTER July I, 1992

PROPOSED RULES

(D) treatment facility name, address and
telephone number;

(E) date of shipment; and

(F) "INFECTIOUS WASTE" or "MED-
ICAL WASTE".

(b) Records of Regulated medical waste shall
be maintained for each shipment and shall in-
clude the information listed in this Paragraph.
This information shall be maintained at the gen-
erating facility for no less than three years. This
requirement shall not apply to persons who gen-
erate less than 50 pounds of Regulated medical
waste per month.

(1) amount of waste by number of packages
(piece count);

(2) date shipped off-site;

(3) name of transporter;

(4) name of storage or treatment facility.

(c) A plan to ensure proper management of
Regulated medical waste shall be prepared and
maintained at the generating facility.

Statutory Authority G.S. 130A-309.26.

CHAPTER 18 - ENVIRONMENTAL HEALTH

SUBCHAPTER 18A - SANITATION

SECTION .1000 - SANITATION OF SUMMER
CAMPS

.1016 LODGING FACILITIES

Sleeping quarters may be of various types de-
pending upon the nature of the camp program
or the state of development of the physical plant,
including dormitory-type buildings, rustic cabins,
tents on platforms, "covered wagons", eter or
other similar sleeping quarters. Permanent
dormitory-type sleeping quarters shall provide
cross ventilation, at least 30 inches between beds,
40 squar e fort p<*f parson, a minimum of six feet
between heads of sleepers and an adequate num-
ber of sleeping units. New construction of per-
manent dormitory-type sleeping quarters shall
provide 30 square feet of floor space per person.
Reconstruction or remodeling that does not in-
crease the number of children housed, shall not
be considered new construction. Lodging facili-
ties, whether provided by the camp or by indi-
vidual campers, shall be kept clean and in good
repair. Clean linen and soiled linen shall be
stored and handled separately and in a sanitary
manner.

Statutory Authority G.S. I30A-248.

SUBCHAPTER 18C - WATER SUPPLIES

SECTION .1500 - WATER QUALITY
STANDARDS

.1507 CORROSION CONTROL AND LEAD
AND COPPER MONITORING

(a) Control and adjustment of pH shall be
provided for community water systems having
water with a pH below 6.5; such control and ad-
justment to be approved by the Department.
Most waters are corrosive in varying degrees at
pH 6.5 and slightly above and such waters should
have pi I adjustment.

(b) Suppliers of water for community water
systems shall collect samples from a represen-
tative entry point to the water distribution system
for the purpose of analysis to determine the
corrosivity characteristics of the water:

(1) The supplier shall collect two samples per
plant for analysis for each plant using
surface water sources wholly or in part or
more if required by the Department, one
during mid-winter and one during mid-
summer. The supplier of water shall col-
lect one sample per plant for analysis for
each plant using ground water sources or
more if required by the Department. The
minimum number of samples required to
be taken by the system shall be based on
the number of treatment plants used by
the system, except that multiple wells
drawing raw water from a single aquifer
may, with Department approval, be con-
sidered one treatment plant for determin-
ing the minimum number of samples.

(2) Determination of the corrosivity charac-
teristics of the water shall include meas-
urement of pH, calcium hardness,
alkalinity, temperature, total dissolved
solids (total filterable residue), and calcu-
lation of the Langelier Index in accord-
ance with Paragraph (d). The
determination of corrosivity characteristics
shall only include one round of sampling
(two samples per plant for surface water
and one sample per plant for ground wa-
ter sources). However, the Department
may require more frequent monitoring as
appropriate, and may require monitoring
for additional parameters which indicate
corrosivity characteristics, such as sulfates
and chlorides. In certain cases, the Ag-
gressive Index, as described in Paragraph
(d), can be used instead of the Langelier
Index; the supplier shall request in writing
to the Department which will make this
determination.

7:7 NORTH CAROLINA REGISTER July I, 1992

668

PROPOSED RULES

corrosivity characteristics within the first 10 days
of the month following the month in which the
sample results were received. If more frequent
sampling is required by the Department, the
supplier can accumulate the data and shall report
each value within 10 days of the month following
the month in which the analytical results of the
last sample was received.

(d) Analyses conducted to determine compli-
ance with Paragraphs (a) and (b) of this Rule
shall be made in accordance with methods
adopted by the United States Environmental
Protection Agency and codified as 40 C.F.R.
141.42(c)(1) through (9) which are hereby
adopted by reference a* amended through March
4-3t W%3n A hst ©f these methods is available
from the Public Water Supply Section, Division
ef Environmental Health, RtOt 8e* 29536,
Raleigh. North Carolina 27626 0536. incorpo-
rated bv reference including any subsequent
amendments and editions. This material is
available for inspection at the Department of
Environment, Health, and Natural Resources,

Division of Environmental Health. 1330 Saint
Mary's Street. Raleigh. North Carolina. Non-

members may obtain copies from the American
Water Works Association, Information Services,
6666 West Quincv Avenue. Denver, Colorado
80235 at a cost of fifteen dollars ($15.00) U£ to
20 pages and thirty cents (SU.30) per pay for each
additional page.

(e) Community water supply systems shall
identify whether the following construction ma-
terials are present in their distribution system and
report to the Department:

( 1) Lead from piping, solder, caulking, interior
lining of distribution mains, alloys and
home plumbing;

Copper from piping and alloys, service
lines, and home plumbing;
Galvanized piping, service lines, and home
plumbing;

Ferrous piping materials such as cast iron
and steel;

Asbestos cement pipe;
Vinyl lined asbestos cement pipe;
Coal tar lined pipes and tanks.

(f) Community water systems in operation on
the effective date of this Rule shall comply with
the requirements of (b) and (e) within one year
of the effective date. Community water systems
which begin operation after the effective date
shall comply with the requirements of (b) and (e)
within one year of the date operation begins.

(g) The provisions of 40 C.F.R. 141. Subpart
I - Control of Lead and Copper are hereby in-
corporated bv reference including any subsequent
amendments and editions. This material is

(2)
(3)

(4,

(5)
(6)

(7)

available for inspection at the Department of
Environment, Health, and Natural Resources,
Division of Environmental Health, 1330 Saint
Man's Street, Raleigh, North Carolina. Non-
members may obtain copies from the American
Water Works Association, Information Services,
6666 West Quincv Avenue, Denver, Colorado
S0235 at a cost of fifteen dollars (S15.00) up_ to
20 pages and thirty cents (SO. 30) per pay for each
additional page .

Authority G.S. 130A-315; P.L. 93-523; 40 C.F.R.
141.

SECTION .1600 - VARIANCES AND
EXEMPTIONS

.1607 VARIANCES AND EXEMPTIONS FOR
CHEMICALS AND LEAD AND COPPER

(*) Removal using granular activated carbon
(except fof vinyl ohlonde) a$%4 removal ucing
pack e d tower aeration ate identified a* the best
availabl e technology fof achieving compliance
with the maximum contaminant levels fof sy«-
thotio organic chemicals.

(b) Except a* provid e d » Paragraph fe)r the
Department may require, as a condition fef the
Department te grant a variance, a community
water system et non transient, non community
water system t» install a«4 t*se afty treatment
m e thod id e ntified » Paragraph (a)r tf the system
cannot moot the maximum contaminant level af-
ter installation a«4 «se &f the prescribed treat
mont method, the system shall be eligible to
request a variance. A varianco may only be
granted if the requirements ei 130A 321 afe met.

fe) tf a system ea» demonstrate through com
prehensive engineering assessments, which may
include pilot plant studies, that the treatment
methods identified » Paragraph (a) would e*4y
achieve a de minimis reduction » contaminants,
the Department may- requir e , as a condition fof
the Department t& grant a varianco, that the sys-
tem being granted a varianc e examine other
treatment methods » accordance with a schedul e
ef complianco issued by the D e partment.

fd} If the Department determines that a treat
ment m e thod examined under Paragraph (e) »f
this Rul e is technically feasible, the Department
ma* requir e the system te- install a»4 »se that
treatment method » connection with a eomph
anc e schedule. T4*e Department's determination
shall be based upon studies by the syst e m and
oth e r relevant information.

The provisions of 40 C.F.R. 142.62 are hereby
incorporated bv reference including anv subse-
quent amendments and editions. This material

is is available for inspection at the Department of

669

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

Environment. Health, and Natural Resources,
Division of Environmental Health, 1330 Saint
Mary's Street, Raleigh, North Carolina. Non-
members may obtain copies from the American
Water Works Association, Information Services,
6666 West Quincy Avenue. Denver, Colorado
80235 at a cost of fifteen dollars ($15.00) u£ to
20 pages and thirty cents (SO. 30) per page for
each additional page.

Authority G.S. 130A-315; P.L. 93-523; 40 C.F.R.
142.

.1614 BOTTLED WATER AND POINT-OF-USE
DEVICES

frry ^m^ i^vtin iiiiviit mnT i ^-^~-\ urn cr pom t ttttttt

system to «se bottl e d water ©f point of use de-
vic e s a* a condition fof grant in g a variance »f
oxomption from toe requirements &f 4-5A- NCAC
4-8G .1518 to avoid a» unreasonable risk to
hoalth.

(b} Public water systems toat- Bse bottled water
as a condition ef obtaining a varianc e ef e#-
emption shall moot toe following requirements »
either paragraph (b)( 1) »f (b)(2) ef ftfts Rul e »
addition to- requirements » Paragraph (b)(3) »f
tois Rule:

(4) 4be wat e r supplier shall develop a»4 ef>-
e rat e a monitoring program tba* provides
reasonable assurances toa* the bottled
water meets aft maximum contaminant
levels, -the water supplier must monitor

a representative sample e£ toe bottl e d
tef fof aft contaminants regulated under
45A NCAC UG 1518(a) the fast quarter
toat- ft supplies the bottled water to toe
public, and- annually thereafter. R e sults
ef toe monitoring program shall fee p*e-
vided to toe Departm e nt annually; ef
44te public water system shall receive a
certification from toe bottled water com
pany toat- toe bottled water supplied hr*s
been takes from a» "approved source" as.
defined m 24 C.F.R. 129.3(a) wlaeb is

wftft G4v 150B M(c); toa* toe bottl e d

» accordance wftk 44- C.F.R. 129.80(g)(1)
through (4) winch is hereby adopted by
relerenco to accordance with G.S.
150B M(c); aed the bottled water dees
set exceed a«y- maximum contaminant
levels ef quality limits as set eto to 24
C.F.R. 103.35, " 440? and 424 vvbftto. are

wftb G4>r 150B 1 1(c). 4be public water
system shall provide toe certification to
the Department toe fost- quarter after ft

supplies bottled water and- annually
th e reafter; asd
(4) 4fte wator supplier shall provide sufficient
quantities ef bottled water to every person
suppli e d by the public wat e r syst e m, v4a
door to door bottled water delivery.
to) Public water systems that »se point of use
d e vices as a condition fof receiving a varianc e ef
e x e mption must meet toe following require
monts:

(4) 4he water supplier shall operate afi4
maintain toe point of use tr e atment sys-

(-24 44*e wator supplier shall develop a moni
toring pktft a»4 obtain department ap-
proval fof toe pk» before point of use
devic e s ate installod fof compliance. 44te
monitoring plan shall provide health p*e-
toction equivalent to a monitoring pktft
fof central water treatment.

(4) Effectiv e technology must be properly ap-
plied under a plan approved by- toe 6e-
partmont aed toe microbiological saf e ty
ef toe wator must be maintained as fob

(A} Adequat e certification ef p e rformance,
filed testing, and, ft f>et included to. toe
certification process, a rigorous engineer
ifig d e sign review ef toe point of use de-
vices shall be provided; a»4
(44) 4he design at*4 application ef toe
point of use devices shall consider toe
tend e ncy fof increase m heterotrophic
bacteria conc e ntrations ft> water treated
with activat e d carbon, ft may be n e c e s
safy- to ese frequent backwashing, post
contactor disinfection, and- Heterotrophic
Plato Count monitoring to ensure that toe
microbiological safety ef toe water is Ret
compromis e d.
(4) Every building connected to toe syst e m
shall have a point of us e device installed,
maintained, and adequately monitored.
4be ri glits anft responsibilities ef toe
public water system consumer shall be
convoyed with ftfte upon sale ef prop e rty.
The provisions of 40 C.F.R. 142.57 are hereby
incorporated bv reference including anv subse-
quent amendments and editions. This material
is available for inspection at the Department of
Environment, Health, and Natural Resources,
Division of Environmental Health, 1330 Saint
Man s Street, Raleigh, North Carolina. Non-
members may obtain copies from the American
Water Works Association, Information Services,
6666 West Quincv Avenue, Denver. Colorado
80235 at a cost of fifteen dollars (SI 5.00) u£ to

7:7 NORTH CAROLINA REGISTER July I, 1992

670

PROPOSED RULES

20 pages and thirty cents (SO. 30) per page for

etch addition il page.

Authority G.S. I30A-3J5; P.L. 93-523; 40 C.F.R.
142.

CHAPTER 21 - HEALTH: PERSONAL HEALTH

state's familios bolow toe poverty level a* shown
by tbe most roeont information available from
foe North Carolina Department to 7 Adminio
tration. 4toe allocation fo funds to am- county
f»ay be modifi e d to r e flect actual utilisation m
previous fiscal years as4 other management ee«-
sidorationo.

SUBCHAPTER 21 C - PERINATAL CARE

SECTION .0200 - LOCAL HEALTH
DEPARTMENT DELIVERY FUNDS

.0201 GENERAL

fa} fobe purpos e fo local health department
deliv e ry funds is to enhanc e to* provision ef
prenatal, delivery affo no whom ease by giving
impetus to toe development to' cooperation be-
tween local h e alth departm e nts, hospitals affo toe
private medical sector. Funds afe mad e available
to local health departments to assist eligible
women affo their newborns by- reimbursing a
portion to toe eest to e*e Bf more to toe fei-
lowing:

bfe professional fees fof prenatal care, hospital

delivery affo hospital newborn car e ;
foH prenatal outpati e nt diagnostic tests affo

procedures affo prescribed medications;
(-fo hospitalization fof delivery affo newborn

care: affo
(fo hospitalization affo associated professional
fees prior to d e liv e r .' tof toe following
conditions:
(A+ actual e* suspected premature labor;
(-*fo pyelonephritis;
(4fo pre eclampsia.
(-to Local health department delivery funds
shall Hto be used tof toe following:
f44 abortion services;

outpatient postpartum care;
outpatient newborn core:

ffo
to.

transportation, except as provided to Rule

.0207 to tots Section;
(to suppli e s;
(-to equipment;
b7-} sterilization;
(-8) services covered by- other third party fe-

imbursemont sourc e s: affo
(fo salaries to personnel.

Statutory Authority G.S. 130A-127.

.0202 ALLOCATION OF GRANT FUNDS

I h e r e shall be allocated sto thousand affo seven
hundred dollars (S6.700.00) pet yeaf to each
county to toe state. Additional amounts afe ab
located based upon each county s proportion fo
toe total state s bv-e births affo proportion fo toe

Statutory Authority G.S. J30A-J27.

.0203 BUDGETING OF FUNDS

Local health department delivery funds wfo be
budgeted as a separate Itoe item ontitlod "Deliv
efy Services" within each local health depart
ment's Maternal Health budget.

Statutory Authority G.S. BOA- 127.

.0204 CLIENT ELIGIBILITY

ato be eligibl e fef services paid fof through local
health department deliver/ funds, clients must
meet toe residency affo financial eligibility fe-
quirement to 44A NCAC 34A;

Statutory Authority G.S. 130A-127.

.0205 AUTHORIZATION AND
REIMBURSEMENT

(to -fee local health department shall authorise
each client sponsored by- toe delivery funds.
Authorizations afe limited to thoso services listed
to. R-foe .0201 to tois Subchapter.

fb} fohe authorization shall be seto to toe aa-
ticipated providers fo eafe fef e ach authorized
client. The authorization shall include, bto nto
be limited to toe following information:

(fo> nam e to client;

(fo medical s e nic e authorized;

(fo expiration 4ate to authorization;

ffo amount authorized; affo

(to signature to authorizing official.
(to -Pbe local health department shall negotiat e
rates to reimbursement fef services to be pro
vided under toe deliver; , funds. Thes e rates shall
Hto exceed toe medicaid ftoe fo reimbursem e nt
to effect at- toe time toe claim is received by- toe
division.

(fo A health department may nto authorize Be*
pay more than a total to five hundred dollars
($500.00) pef moth e r infant pan 1 fof inpatient
delivery affo newborn services, except that- a
health department w+to a contracted bfob ffsb
maternity clinic ?£&*■ authoriz e &f*& pay «p tor
bto Rto more than a total to seven hundr e d affo
fifty dollars ($750.00) pef mother infant paif fef
high ask inpatient delivery affo newborn servic e s
fof mothers w-be were enrolled to toe high bto
maternity clinic affo th e ir lniant(s).

6~1

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

r^TT rT rTCTTTTTT HOT T.U III IV 111 1 1 IS T TTTTT UUU1UI U- V XTOT

pay more toa» a total el frve hundred dolloro
($500.00) fof e ach pro dolivory hospitalization as
allowed undor Rule .060l(a)('1) el this Section.
Suceossive predeliv e ry admissions el a givon eii—
eat to toe oamo hospital separated by a period

mission.
(£) Other rul e s govorning authorization a&4
billing processing, payment limitations, a»4 limi
tations e» billing clients sponsored by toe doliv
ety funds a*e found to -foA XCAG 21 A.

Statutory Authority G.S. 130 A- 127.

.0206 MONITORING AND EVALUATION

The local health department shall complete ae4
submit toe Maternal aftd- Child I lealth Delivery
Fund School \ Ioalth Fund Annual Report to toe
Division e» a form provided by toe Division
within 44 days after toe es4 el toe contract pe-

Statutory Authority G.S. B0 A- 1 27.

.0207 REIMBURSEMENT/TRANSPORTATION:
BULK PURCHASE/MEDICATION

I U J TTTTTH 11LU1 111 ULI '\JJ II11UI11 UL11 " OI T IUI 1U J 1 1 1 U T

be used to reimburse fof*

(44 private motor v e hicle mileago a»4 public
conveyance fof transporting prenatal pa-

^^^^^^^^ ^^i ■ > ' ^ i \ j '. nutti f^^^^J^ r-i ■ J ■ i t \ -\1 i_iw-r~l t t \ "

IIL'IH J IT_J UUl VJ I I.T.FUHI t III ILJ I I IV rV rllvlx V I I 1 1 T T

clinic;
f2) privat e motor vehicle mileago a»4 rescue
squad a»4 ambulance service ohargos fof
transporting prenatal patients fof a» out
of county hospital dolivory (-the rescue

squad ef ambulanco vehicl e must be pet-
mitted by toe Offic e el Emorgoncy A4e4-
ieal Services, Division e£ Facility Sorvicos,
Department el Human Resources); afrd
ty purchaso el toe following medications i»
bullc fof prenatal atto postpartum pationto
consistent w+fo. legal requirements relating
to toe purchasing aee dispensing ef
medications: R.ho(D) immuno gobulin,
efal tocolytic agontG, ampicillif fr sulfa
drugs, a»4 vitamin aft4 minoral suppl e
monts.
fb4 Individual authorizations afe set required

fop toe dispensing el proscribed medications pef-

ohased to bullc.
(©) 44te local health department shall negotiate

rates el reimbursement fof transportation sef-

vicos. 44ie negotiated Fate fofr

(4A mileage costs el a privately owned motor
vehiclo shall »et oxcood toe state's maxi
mum travel allowance pef v e hicle FftHe fop
automobilo oxponoos as established to

&Sr44«-Bf

(-2^ pubho convoyanoo shall fret exceed toe

customary charges; and
(^ ambulanco aftd rescue squad s e rvices shall
net include chargos fof additional person
fret noodod whilo to transit.
fd4 A local health d e partment m&f «et a«-
thorizo fref pay a patient fof transportation costs.

|, i ) I ii.'il U , n I Hi .1 in.iWmunt jl^KiratTi Ti niilf r- l-i 'ill
y^^f L^^'*^TTT ^^^^^^^TT V 1 \*' L T^^^TTT^T^^T V.1 ^. 1 r^^^^^^^ ^T^^^T^^ ^^^T^^^x

fret be esee to reimburse fof sorvicos available ) fo
toe local health departm e nt, with the exception
el medications purchased to bullc as authorized
by those Rules.

Statutory Authority G.S. 130A-127.

CHAPTER 25 - LOCAL STANDARDS
SECTION .0200 -STANDARDS FOR LOCAL HEALTH DEPARTMENTS

.0213 FOOD, LODGING/INST SANITATION/PUBLIC SWIMMING POOLS/SPAS

(a) A local health department shall provide food, lodging, and institutional sanitation and public
swimming pools and spas services within the jurisdiction of the local health department. A local health
department shall establish, implement, and maintain written policies which shall include:

(1) The frequency of inspections of food, lodging, and institutional facilities and public swimming
pools and spas with the following being the minimum:

Type of Establishment

Bed and breakfast homes

Bed and breakfast inns

Child day-care facilities

Institutions

Local confinement facilities

Lodging

Meat markets

Frequency

1/year

1/6 months

2/year

1/year

1 sear

4/year

7:7 NORTH CAROLINA REGISTER July I, 1992

672

PROPOSED RULES

Meat markets e*

summer camps which are closed for

a period of 60 days or more

Migrant housing water and sewage

evaluation

Mobile food units

Private boarding schools and colleges

Public swimming pools and spas

Pushcarts

Residential care facilities

Restaurants

Schools

Summer camps

1/3 months
of operation
(or part
thereof)

1/year

4/year
1/year
1 /operational

season
4/year
1/year
1 /quarter
1/year
1/year

For the purpose of restaurant inspections, a food sampling inspection shall fulfill the requirement
of an inspection provided a minimum of three distinct samples are taken from the restaurant. A
maximum of one food sampling inspection per restaurant, per year, may be used to meet the
quarterly inspection requirement for restaurants.

(2)

Provisions for investigating complaints and suspected outbreaks of illness associated with food,
lodging, and institutional facilities. Corrective actions shall be taken in cases of valid complaints
and confirmed outbreaks of illness.

Provisions for keeping records of activities described in Paragraphs (a) (1) and (2) of this Rule.
A local health department shall establish, implement, and maintain written policies for the pro-
vision of sanitation education for food service personnel and orientation and in-service training for
sanitarians. The policies shall include the following minimum requirements for sanitarians providing
food, lodging, and institutional sanitation services:

(1) Initial field training for newly employed sanitarians;

CDC Homestudy Course 3010-G or its equivalent as approved by the Division of Environ-
mental Health;

North Carolina State University Food Protection Short Course or its equivalent as approved
by the Division of Environmental Health; and
Compliance with the Board of Sanitarian Examiners' requirements.

(3)
(b)

(2)
(3)

(4)

Statutory Authority G.S. 130A-9.

******************

i V otice is hereby given in accordance with G.S.
150B-21.2 that the EHNR - Commission for
Health Services intends to amend rule(s) cited as
15A NCAC 16 A .0109; ISA NCAC 24 A .0402 -
.0403.

1 he proposed effective date of this action is Oc-
tober 1, 1992.

1 he public hearing will be conducted at 1:30
p.m. on July 22, 1992 at the Archives and History
Bldg., (First Floor Auditorium), 109 E. Jones St.,
Raleigh, X.C.

asons for Proposed A ctions:

ISA NCAC I6A .0109 - To amend the Migrant
Health Program Rules and eliminate inpatient
hospital services as a covered service. This action
is necessary in order to assure the federal funding
authority that there will be reasonable distribution
of financial resources for the Migrant Program
during the July - November Migrant Season. The
assurance is required under a special condition on
the Migrant Health Notice of Grant Award for the
current budget period.

15A NCAC 24A .0402 - .0403 - To amend the Pur-
chase of Medical Services administrative rules in
order to assure conformity with the covered ser-
vices and the reimbursement policy of the Migrant
Health Program as amended.

C omment Procedures: All persons interested in
these matters are invited to attend the public
hearing. Written comments may be presented at
the public hearing or submitted to John P.

673

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

Barkley, Department of Justice, P.O. Box 629,
Raleigh, NC 27602-0629, (919) 733-4618. If you
desire to speak at the public hearing, notify John
P. Barkley at least three days prior to the public
hearing. Oral presentation lengths shall be limited
depending on the number of people that wish to
speak at the public hearing. Only persons who
have made comments at a public hearing or who
have submitted written comments will be allowed
to speak at the Commission meeting. Comments
made at the Commission meeting must either
clarify previous comments or address proposed
changes from staff pursuant to comments made
during the public hearing process.

IT IS VERY IMPORTANT THAT ALL IN-
TERESTED AND POTENTIALLY AF-
FECTED PERSONS, GROUPS,
BUSINESSES, ASSOCIATIONS, INSTI-
TUTIONS, OR AGENCIES MAKE THEIR
VIEWS AND OPINIONS KNOWN TO THE
COMMISSION FOR HEALTH SERVICES
THROUGH THE PUBLIC HEARING AND
COMMENT PROCESS, WHETHER THEY
SUPPORT OR OPPOSE ANY OR ALL PRO-
VISIONS OF THE PROPOSED RULES. THE
COMMISSION MA Y MAKE CHANGES TO
THE RULES AT THE COMMISSION MEET-
ING IF THE CHANGES COMPL Y WITH G.S.
I50B-21.1(f).

Auditor's Note: These Rules have been filed as
temporary rules effective July 6, 1992 for a period
of ISO days to expire on January 2, 1993.

CHAPTER 16 - ADULT HEALTH

SUBCHAPTER I6A - CHRONIC DISEASE

SECTION .0100 - MIGRANT HEALTH

.0109 COVERED SERVICES

(a) The Migrant Health Program shall provide
reimbursement for the following services pro-
vided to migrants which are necessary and essen-
tial for theLr immediate health needs:

(1) ambulatory care services in the form of
physician and dentist services for acute
?ain relief inclu ding extractions, preven-

tive, and restorative care;

(2) other services including psychologist's and
psychiatrist's professional fees, laboratory
tests, diagnostic x-rays, drugs and
medications; and

(3) hospital outpatient and emergency room
services. aft4

f4} hospital inpatient s e rvices.
(b) R e imbursement fof inpatient authorization
scrvicoo shall be limited a* follows:

(4i Hospital service aed admitting physician
service may be authorized fof the fifst-
throe day* ef eaeh admission;

f3) Consulting physician service may be au-
thorized fof e«e day pef admission; if
consulting physician service fo more than
e«e specialty is requir e d, servic e fof e ach
speciality may be authorized fof e«e day
pef admission;

($} Surgeon sorvieo may be authorized fof foe
day before surgery, foe day ef surgory en*4
foe day aftef surgery;

rTT i ii iv ..ti 1 1 Dnro i\j sj^^ uvi " ivx* r 1 1 ut y t^& uuti ivi ic^^y

I ■ A r- th.t . -l J i [ rt t .-t t firnn r ■ ^infl

(5) Radiologist s e rvice may be authorized fof
a maximum ef throe days pet admission.
(b) fo) The Migrant Health Program shall not
provide reimbursement for foe following s e rvices:
(44. hospital inpatient services provided fof inju

«-~» ■••».' - 1 1 «-w 1

(-24 services provided for custodial care.

Statutory Authority G.S. 130A-223.

CHAPTER 24 - GENERAL PROCEDURES FOR
PUBLIC HEALTH PROGRAMS

SUBCHAPTER 24A - PAYMENT PROGRAMS

SECTION .0400 - REIMBURSEMENT

.0402 REIMBURSEMENT FOR INPATIENT
HOSPITALIZATION

(a) The Department shall reimburse providers
of authorized inpatient hospitalization services at
the Medicaid per diem rate in effect at the time
the claim is received by the Department, except
fo foe Migrant Health Program.

(b) The Department shall reimburse providers
ef authorized inpatient hospitalization sorvicoo
under foe Migrant I Ioalth Program at- foe fate e£
twe- hundred dollars ($200.00) pef day ef foe
Medicaid pef diem fater whichever i* less?

Statutory Authority G.S. 130.4-5(3); 130A-124;
130A-I27; 130A-129; 130A-205; I30A-223.

.0403 REIMBURSEMENT FOR

PROFESSIONAL, OUTPATIENT,
OTHER SERVICES

(a) The Department shall reimburse providers
of authorized outpatient services, professional
services, and all other services not otherwise
covered in the rules of this Section at the
Medicaid rate in effect at the time the claim is
received by the Department, except in the
Migrant Health Program.

(b) The Department shall reimburse providers
of authorized outpatient hospital services under

7:7 NORTH CAROLINA REGISTER July 1, 1992

674

PROPOSED RULES

the Migrant Health Program at 80 percent of the
Medicaid rate in effect at the tune the claim is
received by the Department.

Statutory Authority G.S. 130A-5(3); 130A-124;
130 A- 127; BOA- 129; 130 A- 177; I30A-205;
130 A- 223.

******************

iV otice is hereby given in accordance with G.S.
150B-21.2 that the EHNR - Commission for
Health Services intends to repeal rule(s) cited as
15A XCAC 18.4 .0101 - .0132; and adopt rule(s)
cited as ISA XCAC 18A .0134 - .0183.

1 he proposed effective date of this action is Oc-
tober 1, 1992.

1 he public hearings will be conducted at:

July 21, 1992

2:00 p.m.

EHNR- Washington Regional Office

Conference Room A

1424 Carolina Avenue

Washington, N.C.

July 22, 1992

1:30 p.m.

Archives and History Bldg.,

(First Floor Auditorium),

109 E. Jones St.,

Raleigh, N.C.

easons for Proposed A ctions:

15A NCAC 18A .0101 - .0132 - The existing
Crustacea rules were adopted in 1976 with some
revisions made in 1987. These Rules are outdated
and do not recognize new technologies and proc-
esses.

15A NCAC 18A .0134 - .0183 - The purpose of these
Rules is to have up-to-date rules which will provide
public health protection for the consumer and at
the same time recognize the needs of the Crustacea
industry.

■ omment Procedures: All persons interested in
these matters are invited to attend the public
hearing. Written comments may be presented at
the public hearing or submitted to John P.
Barkley, Department of Justice, P.O. Box 629,
Raleigh, XC 27602-0629, (919) 733-4618. If you
desire to speak at the public hearing, notify John

P. Barkley at least three days prior to the public
hearing. Oral presentation lengths shall be limited
depending on the number of people that wish to
speak at the public hearing. Only persons who
have made comments at a public hearing or who
have submitted written comments will be allowed
to speak at the Commission meeting. Comments
made at the Commission meeting must either
clarify previous comments or address proposed
changes from staff pursuant to comments made
during the public hearing process.

IT IS VERY IMPORT A XT THAT ALL IN-
TERESTED AXD POTENTIALLY AF-
FECTED PERSONS, GROUPS,
BUSINESSES, ASSOCIATIONS, INSTI-
TUTIONS, OR AGENCIES MAKE THEIR
VIEWS AND OPINIONS KXOWX TO THE
COMMISSION FOR HEALTH SERVICES
THROUGH THE PUBLIC HEARING AND
COMMENT PROCESS, WHETHER THEY
SUPPORT OR OPPOSE ANY OR ALL PRO-
VISIONS OF THE PROPOSED RULES. THE
COMMISSION MAY MAKE CHANGES TO
THE RULES AT THE COMMISSION MEET-
ING IF THE CHANGES COMPLY WITH G.S.
150B-2 1.1(f).

CHAPTER 18 - ENVIRONMENTAL HEALTH

SUBCHAPTER 18A - SANITATION

SECTION .0100 - PROCESSING AND SHIPPING

OF COOKED CRUSTACEA AND CRUSTACEA

MEAT

.0101 DEFINITIONS

fte following definitions shall apply m &e ifi-
terpretation a«4 onforcomont ef S e ction .0100 ef
this Subchapter:
(44/ "Crustac e a m e at" m e ans the moat ef crab,

lobster, crayfish, an4 shrimp.
(-2) "Food contact surfac e " m e ans the parts

»f e quipment, including auxiliary equip

m e nt. which may be ift contact with- the

food being processed, ©f which may drain

kftte tke portion ef- equipment with- which

fee4 is m contact.
(e-)- "Fresh crustacean" means a liver »w- &f

froz e n crustacean which shows »e decom

position.
(44 "Internal temperature" moans the temper

atur e e4" the animal ef product as opposed

t» the ambi e nt temp e ratur e .
(44. "Packing shipping" means inspecting, final

packaging, placing Crustacea meat under fe-

frigeration. aft4 shipping.
(44 "Pasteurization, pasteurized" em4 similar

terms means the process ef heating every

675

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

particl e ef crustacoa moat m a» approved
hermetically ooalod contain it te a tompor
ature ef at least 4-&# dogroos £r and holding
it continuously at ef abovo At* temperature
fef at- least eee minut e i» properly operated
equipment approved by the state regulatory
authority; provided that nothing » this de-
fuiition shall be construed as barring any-
oth e r past e urisation prooooo which has boen
found equally effectiv e ae4 which is ap-
provod by the Division.
(-7) "Piclung/pacldng" moans picking Crustacea

moat as4 placing the moat m a container.
(&} "Potable water" moans water from a sup

ply approved by the Division.
(9) "Sanitise" moans the approved bactericidal
treatment by a process which moots the
temperatur e an4 chomioal concentration
levels » 4-5A NCAC VIA rJ6+»r

(4-0} "Division" m e ans the Division ef Envi
ronmontal Health ef its authorised ag e nts.

(444 "Adulterated ef misbrandod" means any-
Crustacea having boon cooked, pick e d, ef
packed i» a plant which has net boon certi
f+e4 by the Division m accordanc e with the
requirements ef these Rules ef which ape
polluted as determined by bacteriological
analysis ef if the Crustacea meat is putrid ef
unfit fef human consumption ef which is
net labeled with a valid id e ntification num
bef awarded by the Division ef which hav e
boon exposod te any unsanitary conditions.

(43) "Person" moans an individual, firm, asso
ciation, organisation, partnership, business
trust, corporation, ef company.

Statutory Authority G.S. 130A-230.

.0102 REQUIREMENTS FOR OPERATION

(a) Inspection a»4 Approval. Ne person shall
oporato a Crustacea plant within the State ef
North Carolina until he shall have complied with

t hi"*! to 1 1 n 1 1 ii^i* n 1 1 1 \i ' ' i i "i 1 1 * ■ 1 1 1 ■ l i ■ 1 1 . - ti ill- int « >i ■ 1 1 1 h.ii'ii

"Xv luTrrrnTrig mrCTr U11U TTTTTTT TTTTCTt I * n.ClTT '1 1U11 I TVI V T7

boon inspected and approved by the Division.

(b) Permit . ^ve crustacoa meat plant shall be
operated » North Carolina until a permit te ep-
efate shall have boon issued by the Division. A
permit te operate shall be issuod enly after a
sanitary inspection by the Division shows that
the plant complies with these Rul e s.

(e) Application. Application fef ouch i«-
spoction shall be made m writing by the person
r e questing a permit te operate. Such application
forms ea» be obtain e d at the shellfish sanitation
office). A44 certificates ef inspection an4 permits
shall be posted in a conspicuous place m the
plant. Violation ef afty- ef the following rules
shall constitute sufficient caus e fef revocation ef

II I\J Ut'llnn Ev UL'UIUIU. I *T_J L^Jl 1 1 III IU U LJ VI U. I V Jl IIICT

be isouod ef reissu e d until the plant has boon in-
spected ef roinspootod by the Divioion.

I U i I lL'l'l \.f TUI rTr l IUIIJ. I HII I U HI IVJ -*17V_T_'IJ It'll IM'll I

fef proposed Hew- construction ef remodeling

-II IU.CT L'V oaWrTTrrTUn rTTT 1UT I^TTT^ Lll IU CTT -T TTTTmrTT ITT RIv

shellfish sanitation offic e .
Statutory Authority G.S. BOA- 230.

.0103 PLANTS AND GROUNDS

(af Plant Dooign. Plant dosign shall provide fef
continuous flow ef the yaw- materials an4 product
te- prevent contamination by- e xposure te areas
invoK'od m earlier processing stops, rofuoo, ef
other objectionable areas.

fb4 Plant Location. Plants i» which crustacoa
meat is picked a»d packed shall, te the e xt e nt
feasible, be se located that they wiH net be sub
jeet te flooding by high tides, tf plant floors are
flooded, processing shall be discontinued until
after waters have receded a«4 the facilities ate
cleaned a&4 sanitised. (A minimum plant ele-

l-itnii Q » I i t 1 ■ * • ■ ■ ♦ tin,) I , i , it ' i K , ii i , x t-rt i i ■ ■ r-\ 1^« ill-t il:',t ,-u-
TTTTTTTTT UT IX t TU\X\J\ I T' T_T rCTT U. T 7^7 T f I 1 1VT-11 I 111 i,I 1 T T UlU

shall be provid e d i» Hew plant construction.)
fe) Separation ef Op e rations. S e parate rooms
ef areas approved by the Division should be
provided fef receiving, washing, ane cooking
Crustac e a.
(4) Separation ef Processes. ¥he processes set
eet i» (4-f te (^i ef this Subdivision shall be eaf-
rie4 eat i» separato rooms ef facilities, a«4 the
int e rior walls s e parating th e s e rooms shall ext e nd
from floor te coiling a«4 contain only necessary
openings:
(44 cooling;

picking, packing; Mechanization w4h- r e sult

ie a single flow through process Bad

modification ef these tw-e requirements

would be necessary te permit the ese ef

ene room fef these procedures;

packing/shipping;

refrigeration ef picked crustacoa meat;

provided that m ae emergency, cook e d
Crustacea may be stor e d i» the same fe-
frigeration room w-ith packed crustacoa
m e at;

refrigeration ef uncooked it e ms such as
fresh crustacoa, bait, ef frsbf
pasteurising.

rrr i ivvm i il.'. rTTtnTrrv i iru iiu >'i iuii

be provided fef contain e r storage, locker a»4
lunch, toilets, aftd sales.

(4j Coolcing Room. 44ae coolring afea ef room
shall be undor permanent cov e r, located between
the afea fef receiving paw crustacoa afi4 the

(4)

7:7 NORTH CAROLINA REGISTER July 1, 1992

676

PROPOSED RULES

cooling room, ash be properly vented t© assure)
the quick removal el steam.

fg} Cooling R.oom. !rb# construction a»4 ar-
rangement el A© cooling room shall £ave ade-
quate protection te the cooked Crustacea from
flies, insects, rodents, dust, plant traflic, aft©, the
washing down operation, ^fois room aft© the
refrigeration room fof cooked Crustacea shall
open directly fete the picking room ©f
screened in afea &f passageway through which
Crustacea af© transported after cooling.

fh} Adequate Spaco. Adequate spac e shall he
provided fof ah routino operations te permit
sanitary 1 handling ef Crustacea affo Crustacea m e at
aft©, thorough cleaning ©I equipment.

frt Delivery Window. ¥he delivery window
between the picking packing aftd

pacldng shipping rooms shall he equipped with
a corrosion resistant shelf el m e tal ef equal
smooth non porous surface, draining toward the
packing room.

fj} Lockers. Rooms ef lockers shall he pfe-
vided which have adequate capacity fof storing
clothing, aprons, gloves, a»4 other personal arti
eles ef employees.

Statutory Authority G.S. I30A-230.

.0104 FLOORS, WALLS, AND CEILINGS

fa} Floors. Ah floors shall he el smooth ma-
t e nals a»4 se constructed a*> t© be easily cleanablo
a«4 shall he kept clean a©4 » good repair.
Floors fo coohng, picldng, pacldng, refrigeration,
a«4 toilet rooms shall he ©I concrete ©f other
equally imp e rvious anh e asily cleanable mat e rial.
Adequate floor drainage shall he provided fo. ah
areas where* floors ate subject t© flooding type
cleaning ©f where normal operations release ef
discharge water ef other liquid waste* eft the
floor.

(4*+ Walls a»© Ceilings. Ah walls a»© ceilings
shall he ©I hfe concrete, cement plaster, concrete
blocks, painted wood, ef equivalent material
having a smooth, light colored surface which w4h
endure repeated washings ash shall he free from
cracks, ledges. ae4 shelves. Doors aft©, windows
shall he properly fitted a»4 maintain e d » good
repair.

Statutory Authority G.S. I30A-230.

.0105 ANIMAL AND VECTOR CONTROL
MEASURES

fa} Pa? dent Control. ?he plant shall he se
constructed a* te prevent entrance el rodents,
a»4 there shall he »© evidence el rodents fo a»y-
part el the plant.

(h) Vonnin Control. Effective measures shah
he tale e n te keep domestic animals, fowl, flies?
rodents, ae© other vermin ©e* el the establish
ment a«©! to pr e vent their breoding ©f prooonco
©ft the promises. Ah openings te the outer aif
shah he effectively protected against the entranco
el such ins e cts as©, rodents hy- s e lf closing doors,
closed windows, 16 mesh ef finer screening,
controlled ah currents, ©f other effective) m e ans.

fe} Rodenticides. R.odenticides, which ate
highly toxic te humans, shall ee* he stored fo
Crustacea meat processing plants ash shall e©t
he used except under the supervision ef a licensed
pest control operator ef other qualified specialist.
Rodenticides, which have a fow- toxicity fof h«-
mans. shall he identified, stor e d, ash used fe such
a manner a* te prevent contarnination el the
product ae4 te cause ft© health hazards te wa-
ployoes.

fd4 Pesticides. Only those pesticides shall he
used which have been approved fof specific ©se
a«4 properly registered with the Environmental
Protection Agency a©4 with the North Carolina
Department el Agriculture fo accordance with
the "Federal Environmental P e sticid e Control
Act" aft4 the "North Carolina Pesticide Law".
Such pesticides shall he used a* directed eft the
lab e l ae4 shall he s© handl e d a©4 stored as te
avoid health hazards.

Statutory Authority G.S. I30A-230.

.0106 LIGHTING

fa} Natural ef artificial lighting shall he pf©-
vided fo ah parts el the plant. Minimum lighting
int e nsiti e s shall he a* follows:

f4© ?5 fee* candles eft worldng surfaces fo

picking afth packing rooms areas.
f3} 3© feet candles measur e d at a height el ©ft
inches above the floor throughout the f©s*
el the plant.
*b-f light bulbs, fixtur e s ef other glass ses-
pendod within the plant shall he protected te
prevent contamination fo ease el breakage.

Statutory Authority G.S. I30A-230.

.0107 VENTILATION

Ventilation shall he provided te eliminate odors
im4 condensation.

Statutory Authority G.S. 130A-230.

.0108 WATER SUPPLY

faf Only potable water shall he used t» afty- part
el the plant.

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

(b) Aft atf cooling, picking, aaa packing rooms
shaft be provided with faucets ase wash down

(e) A» automatically rogulatod hot water sys-
tepft shah be provided, which has sufficient ea-
pacity t© furnish water with a temperatur e ©f at
least 44© degrees Ft during ah hours ©f plant ©p-
eration.

(4) Suffici e nt water shaft he availabl e fop aft
plant needs an4 shall be a pressure supply sys-

(e} Ifot a»4 cold water outl e ts dooignod fop the
facility shaft he provided at eaeh siftk- compart
merit, except that warm water only may- he ae-
ooptabl e at hand washing sinks as provided by
jktk MQ9 (e4 ©f thps S e ction.

Statutory Authority G.S. I30A-230.

.0109 PLUMBING AND RELATED FACILITIES

(a) Aft plumbing shall comply with applicable
plumbing codes.

fb) There shall be »©> cross connections be-
tween the approved pressure water supply a«4
water from a non approved source, ar+4 there

c- 1"* o 1 1 lr^^ ^^^i f i \ T 1 I f i^ > i h f ^^^^^^-^^^^^^^^^-^^ ^^-^^^^^^^^j-i ^^^-^^^^^*
5TTFTCT L*^.' 1IV HALUIL'J \J I LU 111 1 W I 1U1IJ 1111 VJ U CI r " 1111.11

the approved supply might be contaminated by-
back siphonage.

L^^\ I r 1 ■ j T" ^ - r t ■ , I I Jr^^ ^^t 1 ■ * ' i ■ l r > \ --, % ' .-> t i~\ r-\ - ^^^^ t^^^^^^^r

^^T TTITIv 3 1 II U J I 'V (.1 1 IV-TI^.71 T, ' 1 IV IU * UUTI T IUI U ' VI T

30 employees among the fipst 400 employees, aft©
at least ©«e lavatory fop each 34> employees »
excess ©f the fost 400t (Twenty four inches ©f
wash siftk ©p 4-8 inches ©f a circular basin, when
provided with water outlets for- such space, wfti
be considered equivalent to- ©pie lavatory.)
f4) Hand washing facilities shall be convenient
t© the work areas, a»4 s© located that the person
responsible fop supervision ea» readily observe
that employoos wash their hands before b e gin
ftiftg work ar+d after e ach interruption. There

E H ' | 1 I r~i , 1 Q t 1 . t- 1 .-* n «-i a 1 'ii ■■itn «-i ■• t n th -i n-i,'l-inn rrw\jTi
"7TTTT1T T!TC CTT I VT1 \7X CTTU 111 I UlUl f 11 1 1 1 IV LIll'IUI I E rTTTTTT

fop «se by packing room workers.

(e) Fbe lavatories shall be provided with b©t
water at l e ast -10© degrees Ft e ith e r from a con
trolled temperature sourc e with a maximum
temperature ef 144 dogroos Ftt ©p from a h©t-
and cold mixing ©p combination valve Steam
water mixing ©p st e am water combination valves

B n • 1 1 1 nai an < < ■ ■ > i

(f) Supplies ©1 soap ap»4 single s e rvice towels
aft4 protected disp e nsers shaft be available Heap
the lavatory. Other sanitary drying devices, if
approved by the Division, ape acceptable. Adja
6etft t©- the lavatories, a container ©f suitable
construction shah be provid e d fop the s©le p©p-
poso ©f sanitising the hands fo a» approved s©4-
ution ©f adequate strength, 400 parts pep million

(g) Conveniently located, separate toilets shall
be provided fop eaeh se* exc e pt that separate fa-
cilities nood »©t be required whon family oper
ations ape carried ©» &h4 satisfactory toilets ape

» \-f D >-» I i.'u CXvCQ Kr J j UI " 1 1V^ I 1 1 IV L* 1U1IT 1IU.U IUII VI L11U1 1

40 employees.

fb} Toilet room a»4 privies shall be protected
against the entrance ef flies. Doors ©f toilet
rooms a»4 privies shaft set open directly iftt©

L ' 1 O *_^J 39XXZE 11 J Wl J UI TTT& pKHTT CD RB UTTOn L/U UV II

closing. Toilot rooms api4 privies shall be kept
clean, i» good repair ap>4 furnish e d with toilot
paper.

fl) Toilet rooms a«4 privies shall be ventilated
by a direct opening te- the outor a»7 ©p by a PHe-
chanioal vontdating system. Aft vents shall be
screened ©p hav e self closing louvoro.

(f) Fixtures, ducts, a«4 pipes shall H©t be s©
suspended over worldng areas that dpfo ©p
condensate FHay contaminato foods, paw- materi
alsr ©p food contact surfaces.

fk} Plumbing facditios a«4 equipment shall be
s© constructed aftft se- located as t© permit »©•
splashing ©f water onto picking tables, pacldng
tables, moat t© be ©p already packed, pacldng
cans, picking pans i» transit, unpicked cooked
Crustacea, ©p shelf ©f the window through which
picked crustacoa moat is delivered t© the pacldng
room.

(1) Plumbing facilities aft© equipment shall be
s© plac e d as t© facilitate the flow ©f plant activ

« ♦ « . t f --\r\f\ | n i-. d -i < i ■ i n t . i l * ■- . t iiIiiIa ■! ♦ t ri.^ C ■> m . t tiiii^i
1 1 IV UI III I_l I 1V1U11UI1 I \r U -*^' J tTTTTT^' LI I 1 1 IV* L**cU 1 IV llil l~

avoiding crowded conditions.
Statutory Authority G.S. /30A-230.

.0110 SEWAGE DISPOSAL

fa4 Aft sewage as4 other hquid wastes shall be
disposed ©f i» a public sower system ©Pt i» the
absence ©f a public sewer system, by a» approved
sewage disposal method as provided fo "Sewau e
Disposal Systems," 44A N'CAC 4«A t4Q00t

fb+ Privies shall be permitted only whore
water carnod soworago systems ape set foasible.

Statutory Authority G.S. 130A-230.

.0111 CONSTRUCTION OF UTENSILS AND
EQUIPMENT

All equipment aftft utensils shall be s© designed
a»4 ©f s©eh material a»4 worlunanship as t© be
smooth, easily cleanable, aft4 durabl e apfo shall
be kept fo good repair. ¥he food contact shp-

tfifNfii- .->» i~\ r~i l l t r\ m int 'in.-t l itiinrilf I 'h ' | I I 1 t~\ ■ \ . 1 . 1 1 t 1 H T1

ITT*t^*"^ PT ^^TTTI I " I i^TTT - HI I U 11 1 VI I .'II J L'l ILllTy in uuvinn'ii,

be easily acc e ssibl e fop cleaning, non toxic. e©p-
rosion r e sistant, nonabsorb e nt, apfo f+ee ©f open
s e ams.

7:7 NORTH CAROLINA REGISTER July 1, 1992

67 S

PROPOSED RULES

Statutory Authority G.S. J30A-230.

.0112 GENERAL CLEANLINESS

fal Material aftd equipment aat t» routino ase
shall be stored m designated rooms ef areas.

fb) 44*e proc e ssing areas el the plant shall set
be used fef other operations whilo crustacoa a?e
being processed.

fe) >fe unauthorized persons shall be allowed
» the processing areas el the plant at- saw time.
Sales ©I Crustacea ef Crustacea meat shall fiat he
made from a»y processing portion ef the plant
ef by- aft processing personnel.

fda Premises shall he cl e an as*& fee el litter aftd
rubbish.

Statutory Authority G.S. J 30.4-230.

.0113 CLEANING OF BUILDING AND
EQUIPMENT

I ; I i 1 1 i , ^ p 1 - I t -i t intin,^r -hill 1^^ 1 - . . r-. t ^lfinn fiT^W

I U J I 1 IV. L'llU I I lillV I R'l _'l Kin t' V rTCTT (_ IVTX1T HI 1U

ah- utensils aftd equipment shall he thoroughly
cleaned at- the eftft el each day s operation a«4
more often t£ necessary. Food contact surfac e s
shall he sanitized at- the eftd- el eaeh day's opera
tion. Sanitized shovels shall aet he stored eft the
floor. Piclcing pans aad- lcnivos shall he cleaned
aftft nnsed frequently i» a bactericidal solution
during the day s operations, such as after delivery
el meat te- the paclang room. Piclung lcnivos
shall fiat he padded ' . vith paper towels ef rags .

fba Facilities shall he provided aad- used lap the
cleaning a»a sanitizing el utensils a»4 equip
ment. 44>f e ven' aft pickers, a two compartment
sink, with bet- a«4 ee4a running water shall be
located ha the pieldng room. Facilities fef
washing scrap containers shall be provid e d.

Statutory Authority G.S. BOA- 230.

.0114 BACTERICIDAL TREATMENT OF
LTENSILS AND EQUIPMENT

AH lood contact surfaces shall be treated by e«©
ef more el the following methods:

(-H Exposure fef at- least 44 minutes at- a tern
perature el at- least 44ft degrees 44r ef fef at
least five minutes at- a temperature el at- least
=ftft degrees 44r m a steam cabinet equipped
w4tb a thermometer located m the coldest
zone;

f4+ Immersion fef at least ©«e minute bar ef
exposure fef at least a»e minute te a flow
»i st solution maintained at net less thaft 4-ftft
parts eef million el free chlorin e ©f its
e quivalent; AH food contact surfaces must
be '.vetted by the bactericidal solution ae©
piping. s© treat e d. must be filled.
Bactericidal sprays containing »©t less than

2ftft parts ©ef million el free chlorine ©f its
equivalent aaay- he asea fef largo equipment ?
Bactericidal tr e atment watb chemioals is fiat
e ff e ctiv e unless the surface has boon thor
oughly cleaned;
fa) Afty- bactericide approved by tee Division
is satisfactory fef ase » connection watb
crustacoa plant sanitation.

Statutory Authority G.S. 130A-230.

.0115 STORAGE OF EQUIPMENT

Equipm e nt aft©, utensils, which have been
cleaned aft© given bactericidal treatment, shall be
stored se as te be protected against contam
ination.

Statutory Authority G.S. 1 30 A- 230.

.0116 RECEIVING OF CRUSTACEA

faa Only fresh crustacoa shall be accepted fee
processing. >fe crustacoa plant shall piefe
Crustacea meat from afty inter plant shipment el
cooked crustacoa ©f portions thereof without
special authority from the Division.

fba Fresh crustacoa shall be cooked as soon as
possible aft e r receipt at the processing plant.

Statutory Authority G.S. 130A-230.

.0117 COOKING

fa+ Crustacea shall be cook e d under steam
pressure until such time that the internal torn
perature el the center most crustacean reaches
aaa degrees 44 Temperature shall be measured
with a maximum registering thermometer having
a range el PQ 270 degrees 44-

fb+ 44ae retort shall be se constructed as t©
p e rmit a working pressure el at least 20 psig.
Steam inlet a«4 venting shall provide a uniform
aftd complet e distribution el steam. Venting
shall be sufficient te- permit complete elimination
el atf from the retort. Drains aft© vonts shall he
located at least twa feet above mean bleb water.
fa) al*e retorts shall be equipped with:
f4-) aft enclosed, mercury filled, indicating
thermometer with a range that wall include
170 270 degrees 14 aft© locat e d w+tfr the
bulb extending bate the heat chamber;
(4) a» operating pressure indicator, at least
threo inches m diamet e r, with a 30 es*g
range, a»© located adjacent te the indi
eating thermometer;
fa+ a safety valve operational at 18 30 psig,
locat e d i» the upper portion el the retort,
protected from tampering. aa4 appropn
ate fef operator's personal safety.

6~9

7:7 SORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

(4) Boilor must fa ef ouch capacity as to
maintain 4£ to +9© psig during coolcing. Tfa
stoam fee from the boiler to tfa retort shall fa
at- least one fourth weh insid e diameter. A pros
safe regulating valve, with a 10 30 psig rango is

OU llUlliiJ -■ tt mrovi j rr siiuix rj^y luimuu cttt 1 1 iv a i vti hi
1 1 nti fini-1 c la a 1 1 ". i iin.i 'i|iil ."««-> i-* r in 1 1 r*t ri i n c r ~i t *> l ~ i ii fi 1 1 1 f^

tJJt P CTrtTT Jl lUlx t^Q LTir LFIITJ T.TI IV I VJ HI III 1IIVIIV.T Ill LI 1 11 V

diameter, if set adjacent to the retort, ef at least
eee ieeh insido diameter, if adjacent.

(e) Ovorhoad hoists shall fa equipped with-

CTTTTBTT OTCgo ■

(f) Retort coo lung baskets shah 1 fa ef stainless
steel ef oquivalont material, afa shall fa se 4e-

-^ fw» ^^J --^ e * q ail^MJ : tj-lt- «-^»-j-» n,-\r r f i \ a m nirhi i BCflta aai

SlE|JH?tT trS tTT IU1W1T rtTT I'l Ul 'VI UllAU II Ul'JUlil ..^.'l 1 1 VI 11 ,

ease ef handling, afa dumping afa satisfactory
cloaning.

(g) Nothing i» this Rul e shall fa se construed
as barring aey other cooking proc e ss which fas
boon found equally offoctivo afa which is ap-
provod by the Division.

Statutory Authority G.S. I30A-230.

.0118 COOLING

I j"\ ,--> J r (is-\ <-* fl 1 r* 4 *-> n j"* n ^^^^^^£ ^^^T^^^^^^^^ ^^^^^^^ tA^^ rati I f "j

shall fa moved immediately to a protected area
to fa aif cool e d to ambiont tomperaturo without
being disturbed. Cooked Crustacea shall fa
stor e d » original retort cooking basket.

Statutory Authority G.S. I30A-230.

.0119 PICKING AND PACKING

(a) The picking afa packing operations shall
fa conducted to a sanitary manner. When
cook e d Crustacea moat is washed, it shall fa
washod m oloan running wat e r from an- approved
sourco. AH cook e d Crustac e a placed before a
picker shall fa picked bofuro a Hew- supply is de-
livorod. Crustacea meat shall fa placed under
r e frigeration within two- hours after picking.

(h) Repacking ef Crustacea moat which has
boon picked ef process e d i» another plant shall
»et fa allowed.

' C J UliT nilirm e\ t if. i. V-» ii:it n t «-, ^ t.in j~i r i-* <t i. - 1 ■' n 1 t«« ■ > f \ jH

IUI uici lull ic, rrr 1 I^Tttt tttttt II 1J/LK11 trr pmtTOrEBQQ

moat shall fa prohibited.
(4) Cans ef other containers fef packaging
cooked Crustacea moat shall fa clean, sanitized,

tightly closed ef waled after filling.
(e) Packer's certificate number shall fa legibly
impressed, ombossod, ef lithographed to ef e»
the sides ef the containers to which Crustacea
moat is packed, except when the fa becomes a»
integral part ef the container during the coaling

T1T"l ^ 1 ' I ' ' ' ll'' p i i pa b<m *"*"* -1 l ! W»."» r\ n t V-. ■ i 1 | ,-1 ■ n ■ ■ T-v-t ;-k r, w-i ri

I-'* o wjj, ii iv liui 1 1 1 ' vi 1 1 1 u t r^p it? i 1 1 it^ i iti , i mitpp cttw

addrous ef the f+ffe ef distributor shaH fa simi

lafly mark e d e» the container hdr Plastic fags
shall have the name afa address ef- the pack e r ef

UIJU 1 C «-■• I "." I CTTTTT CTTTmOTTH^T rTT^TTr^^^T r^T TTTV r^-T^TT^^r

permanently marked e» thorn (Hand stamping is
unacceptable.). Contain e rs boaring a certificate
number othor than that ef the respective plant

^J^^^U rtitf l-» . ^ •ill.-ni.-iiil < n t^^^ n 1 --i r\ + I-. *i j'-t-i r~- 1-\ n ♦ ^i I ft OJE
Ul lUn nui 1,'U U1JVJ tl DO 111 LI IV L'lUl 1 1 . I ^TJVTT IAJ I IIUU1UI

shall fa permanently afa logibly idontifiod with-
a code indicating date ef packing.

(f} Only clean shipping barrels, boxes, afa
containers shall fa usod.

Statutory Authority G.S. J30A-230.

.0120 FREEZING

(a) Crustacea m e at fef frooaing shall fa frozen
within 34 hours ef the tifae it is picked.

ffa Storage ef froi'.on Crustacea moat shall fa
at «»fe degrees £r ef lower temperaturos.

Statutory Authority G.S. J30A-230.

.0121 CRUSTACEA SCRAP DISPOSAL

Scrap containers shall fa removed from tfa
picking room as soon as they- afe fill e d, placed i»
suitable protected storage, afa shall fa r e moved
from tfa premises at least daily a«d disposed ef
to a mann e r approvod ey tfa Division. AH scrap
containers shall fa leak proof afa ef
nonabsorbont materials afa shall fa thoroughly
cleaned at l e ast daily. Othor solid wast e s shall
fa stored afa dispos e d ef with sufficient fre-
quency afa alse i» a mannor approvod hy tfa
Division.

Statutory Authority G.S. I30A-230.

.0122 SINGLE-SERVICE CONTAINERS

AH- single service contain e rs shall fa stored afa
handled to a sanitary manner, afa wh e r e nocos
sary, shall fa given bactericidal treatm e nt imm e
diat e ly prior to filling afa adequately drained.

Statutory Authority G.S. 130 A- 230.

.0123 REFRIGERATION

(a) Refrigeration rooms shall fa ef sanitary
construction with ae imporvious floor, graded to
drain quickly. 4-^fa rooms shall fa constructed
se that they- wiH net receive drainag e from oth e r
portions ef tfa plant. Floor drains shall eet fa
conn e cted directly to a sower.

fh} lee boxes, fef tfa pick e d product, shaH fa
ef sanitary construction with ae impervious lift-
ing afa have a» effective drain.

fe) B*e refrigeration room ef ice fa* shall fa
larg e enough afa constructed se that a fell day's
production, with ieer eae fa convoniently stored

7:7 NORTH CAROLINA REGISTER July 1, 1992

680

PROPOSED RULES

a«4 equipped with a thermometer located m the
room ©f b&#r

fkf lee shall fee manufactured » tfee plant ©f
obtained from a» approved source. Packers,
purchasing crushed iee-r shall secure k from deal
t*f* who handle, crush aftk deliver k » a sanitary
manner.

fe} fee feift* shall have smooth impervious iee
contact surfaces a»4 shall fee constructed aft4 1©-
catod se- tfeat- tfee bottom i§ abov e tfee level ©I 4ie
adjac e nt floor a«4 drams away from tfee unused
ieer

ffk Block tee shall fee properly stored te avoid
contact with contaminated surfaces a«4 shall fee
t ho ro uglily washed ©ft a» elevated metal stand
©f grating, with a hose provided £©f this purpose,
before k k> plac e d » tfee crushing machin e . A
corrosion resistant container shall fee provided te
catch tfee crushed tee falling from tfee crusher.
( Whore tfee crusher is located » a protected por
t+©» ©f tfee refrigeration room, tfei* container k>
»©t- required.)

fg) AH- facilities ami equipment employed »
handling aft4 prepanng we £©f ttse shall fee used
fof so- other purpose aF>4 shall fee clean e d e ach
day tfee plant k> » operation. Shovels shall fee
hung ©f stored k* a protected manner when He*

ffek Where k is necessary to have iee k* the
packing room a metal lined container ©f com
partment ©f sanitary construction shall fee ©f©-
vided fof tfee seie purpos e ©f stonng such iee
manufactured k* tfee plant . purchased crush ieer
©f block iee tfeat- has been crushed m tfee plant;
except tfeat- clean barrels ©f boxes fo* shippmg
Crustacea m&f fee used £©f tfe*s purpose.

Statutory Authority G.S. I30A-230.

unprotected surfac e ©f other oourco ©f contain
ination. Employooo engaged m picking a«4
packing operations shall rinse thoir hands, fefe
lowing washing, i» a clean sanitizing solution
containing at- least 445Q parts peF million el avail
afele chlorin e ©f other equally offoctivo
bactericid e . Fingernails sfea« fee short a«4 clean

■ rill iirrLi'ilfl Cl^i^fai ' "" " ' ' I I 13 Q * i "!■ h ' I I ■ t r * T ^ ii 1 1 i I . ■ fM,'l.-in i-»

©f pacldng. fe«se ©£ cloth wraps ©f cloth fingor
e©ts shall net fee permitted.

fe} Appropriat e hand washing signs 4jaH fee
posted k% toilets ©f privies a«4 at- conspicuous
places k% both picking rooms aj*4 at- tfee hand
washing lavatories.

ffk Pickers, packers, aad handlers ©£ unpiclcod
cooked Crustacea ©f picked meat shall wear clean
outer garments aftk aprons. Aprons sfewH covor

1 1 l\J 1IU11L til 1U J1UI J tTl 1 1 IV 1_'\_'\J T . L-'U L' J i_Tl I RQ EEOCQ
T^T^TITi rtTTvr vttT? iT^T^^ fTTTTT^ rT^TTTT t*TT r^^TT? TT^ TTil?

elbow ©f covered with approved typo am* guards.
Any type ©f protective clothing employing ruffles

j^i^tl it- 1 1 f ~1 ■ 1 T~1 Till i t ] r T i ■ i t , i T-i ■ l 1 ^^^ \ i i \\ I ^^^ ^ ^ * r- ■ > t^ t~t I I fc ^' t < Q
C^^^TT Cu ui^ l nib ^^X 1 1 1 d ^^^T^^^^^ t^j ^^^^^T C^j ^^^^T^^T ^^^^^^^^^^

^J^^^^l ^^^^t ^^^ ^ i ■ . L . J

fgf Clean, individual, single serv ' ico, hand papor
towels shall fee provided fof e ach picker te- «*e
during picking operations.

ffe) Employees shall aet- eat- food e* ase te-
bacco » afty form » tfee packing »f picking
rooms.

Statutory Authority G.S. J30A-230.

.0125 SUPERVISION

¥fee owner ef manager shall either personally
supervise ©f shall designate a» individual whos e
principal duty shall fee to- supervise aftk fee Fe-
sponsible fof tfee complianc e with the rules e£
tfeis Section.

.0124 HEALTH AND CLEANLINESS OF
PERSONNEL

fa} Persons whil e affected with a disease » a
communicable form ©f whil e a carrier ©£ such
disease ©f whil e afflicted with boils, infected
wounds, ©f an- acute respirator/ infection, shall
fee e xcluded fro m tfee plant.

ffef Daily observation ©f inquiries ©f employees
shall fee made fey tfee managers ©f supervisors te-
d e tect a»y j+g» ©f illness among employees.

kH A report ^Tfei4^ fee made t© tfee local health
authority when a» employee is known ©f s«§-
pected ©f hai l ing a disease » a communicable
form.

(-4* Employees shall wash th e ir hands thor
o uglily with warm water aftk soap, then dtp- them
k* a» approved sanitizing solution before begin
ning work aftk prior t© returning te- work after
leaving working ar e as ©f after contact with a»

Statutory Authority G.S. 130A-230.

.0126 MICROBIOLOGICAL STANDARDS

fa} Fresh cooked Crustacea m e at shall »©t-
contain mor e than ^k Escherichia eeti MPN pet
+kk grams, ©f hav e a standard plate count ©f
mor e than 100,000 bacteria peF gram.

ffe-> Pasteurized Crustacea meat shall contain Ft©
Escherichia &&U ©f fecal conform. Samples ©f
pasteurized Crustacea meat, taken within 34
hours ©f processing, shall H©t- hav e a standard
plate count ©f mor e than 3,000 bacteria peF gram.

fek Crustac e a meat shall H©t- contain

pathogenic organisms k> sufficient numbers te
fee hazardous t© tfee public h e alth.

f4) Crustac e a meat found H©t complying w-kfe
tfee microbiological standards a& stated k% kt>: (fe}r
»ftk fe+ ©f tfek Rule, F»ay fee deemed adulterated
fev tfee Division.

681

7:7 NORTH CAROLINA REGISTER July I, 1992

PROPOSED RULES

Statutory Authority G.S. 130A-230.

.0127

PASTEURIZATION PROCESS
CONTROLS - THERMOMETERS

(a) Indicating and Recording Thermometers.

be provided e» aii pastourizing oquipmont aft4
Gon e as timo tomporatur e controllers. The bulbo
ef both thermometers shall be located waste
give a tf»e roprooontation ef the operating t e m
poratur e ef the water bath. A representative ef
the Division shall ch e ck the accuracy ef both
thermometers as installed a»4 at least once each
oporating ooaoon. The recording thermometer
chart must be at least a 12 hour chart, aed at
least 40 inches i» diamotor.

(b) Protection ef Recording Thermometer.
The recording thormomoter shall be installed se
that it will be protected from vibration aed from
otrilcing by loading operations ef plant traffic.
The thermometer mechanism shall be located se

OS I" T^W L'l t_T COT H-^J 11 UI11 1 1 T\7 1 Jl tl 1 V TTTTTT^T DXV fUlllll t,

conditions. The thermometer ease shall ee* be
open e d during the pastourizing cycle, except fof
tomporatur e chock ef fof emergency ef repair, a
record ef which shall be made.
(e) Recording Thermomotor Temperature
Range and Accuracy. The recording

thormom etef shall have a range ef at least
120 220 dogroos ft ft shall be accurate within

ftl 1 1 f .--v*- TT1 mill' ft «-» J* ,-f, ^. rrun I ■ K.-itll ■ , i. u-A 1 A( I . t . ■ ■ »-«-. -\. 1 i-

L' 1 LI B Ul rTTTTTTXTT U 1 IU DOEI W I ■ T7UTTTTTTT TTTT UV5J WO

ft aft4 300 dogreoo ft The chart shall be scal e d
at a maximum ef twe dogreoo ft intervals fo the
rango ef 4-60 dogroos ft aed 300 dogroos ft
(4) Indicating Thermomet e r Tomporature
Rango aftd Accuracy. 44>e indicating

thormom etef shall be a mercury thermometer

^^i^J^ ^l ^^^^^^^^^^^^^^ *-fc *t j~1 J-^^^^^^^J^^^^^L^^ j > T ^^^^^^ ^^£ t > . i i t I i ..

TTTTTT UJ 1 UIVU I Ul 1 T UJ 1U 1 1. 7.1 TJ I II ■ 11 1 1 T (-'I L'lUJ rTT rTTTTTTTTT

ene degree ft between 4-60 dogreoo ft a«d 300
dogrooo ft The thermomotor shall be protect e d
against damage.

(e) Recording Thermometer Timo Accuracy.
The recording thormomoter shall be equipped
w+tfe a spring op e rat e d ef electrically operated
clock. The recorded elapsed time as indicated
by the chart rotation shall net- oxcood the tfee
elapsed time as shown by a» accurate watch.

I Qfl flit 'll ITU' i'n'1 r-j l I i r\ r-w \ ri • V \ ■ 1 1 W. > p*Q1 I i . 1 , | ,"1 u iih

pin* upon which fhe chart shall be affixed by
puncturing the chart.

ff} ftse ef the Recording Thermometer Chart .
The pasteurization ««ft shall set be operated
without a recording thermomotor chart i» place,
the pe» fo contact with the chart , aftd an- inked
r e cord being made ef the operating time

^l^^l^i \ ni- «n ,Jn>fitii"it-l i~\ t ]

J- T t_*IV. 1 TTTT mTTTT^CTTTTTTT CTT 1

ef a thormom etef chart shall constitut e a vie-

1 - 1 1 l / ) II A fiAin r-h 'i r*t ci^^^l J^A Ll^^^i ^^u; ^j^^J^ ^^^^^^=

1U C lv~* l £ i j i i^^^T^P ^^^TC^^* ^^r^T^ra LJ V ^^^^^^* ^T^^T CTTCtt ^^t^^T^^j

operations a«4 the oodo number »f date e£ each
batch affixod te- the chart fof e ach paotourizing
cyclo. A p e rmanent file &f the used thormomoter
charts shall be maintained by the paotourigor et&4
kept available fof inspection by the Division fof
a p e riod &f e«e year. The following information
shall be recorded within the confinoo e# the pen-
marlrings after the pasteurization cycl e has boon
completed:

(+} Dat e e£ procosoing;

(3^ Quantity &f each batch prooossod (pounds

\J I III \J\X l UI iraTrrTTr LLI I*J Jl/.V ^Tx C^TTTTTTT^T^^^^^y

(d+ Processor's cod e ef each pack;

f4) If the past e urizer procossoo moat fof

oomoono elser thon the packer's namo,

address, im4 bconse e* certification num

bef must be recorded;
{$) Notation e£ mechanical ef power failure

e* opening e4^ the r e cording thermometer

ease fof adjustment e* repair during the

pasteurizing cycle;
{6} After the optimum tomporaturo has boon

reached aft4 during the holding timo, the

the tim e ef reading ohall be r e cord e d e»
the chart;
(44 Written signatur e ef the pasteurizer opor

fg} -Pse ef a Constant Flow Steam Control
Valve. A constant flow stoam control valv e is
required if stoam is used as a oourco ef heat .

(b} Water Bath. The wat e r bath shall be pro
vid e d with effective agitation te maintain a efti-
form temperature.

Statutory Authority G.S. 1 30 A- 230.

.0128 PREPARATION OF CRUSTACEA MEAT

The preparation ef crustacoa m e at fof
pasteurizing shall be fo accordance with the fef-
lowing:
fb) Preparation. Crustacea meat fof

pasteurization ohall be prepared m compli

aftee witb- oxioting Division regulations fof

fresh meat.
f3} Sealing ef Containers. The containers ef

Crustacea meat shall be seal e d as quickly as

possible aft e r the moat is pickod.
(4+ Refrigeration. The contain e rs ef Crustac e a

m e at shall be plac e d immediately under iee

refrigeration.

Statutory Authority G.S. 130A-230.

.0129 PASTEURIZATION OF CRUSTACEA
MEAT

7:7 NORTH CAROLINA REGISTER July 1, 1992

6S2

PROPOSED RULES

Tfee pasteurization ©f crustacoa moat shall fee m
complianc e w4*h the following:

414 Pasteurizing Operation. Crustacoa m e at £©f
pasteurization shall fee pasteurized within 34
hours ©£ the time 4 4> piclcod. Tie mini
mum pasteurization spooificationo shall fee
the raising e£ the internal t e mp e rature ©f the
contain e r ©f Crustacea moat te 4-S4 dogrooo
44- afi4 holding at that tomporaturo ie* at
least ©fte minuto at the goomotnc con tor ©f
a container approved fey the Division; pro
vided that nothing t» this definition shall fee
construed as barring a»y other
pasteurization process which has boon found
e qually e ff e ctiv e a«4 which 4> approv e d fey
the Division. Each set ©f pasteurizing
equipment shall fee standardized se- that the
above pasteurization treatment ea» fee ©fe-

t'iir\ .1/1 11t^ ri'u tall T-i "iar g ti • 1 1 1 ^^^^rt /~i r\ T«l^ +1^^

^v^^^^^^^^T ^^^^^C ^^t^^T^^^^T^T^^T Tt^^T^T ^^^^^^^ ^^^T ^^^^7 ^^^^^

standardization report, a»4 his

pasteurization proc e dur e shall fee performed
m accordance with kv
f44 Temperature Timo Requirements.

Temperature time requir e m e nts shall fee 4e-
tormined fof each water bath a»4 all oporat
i»g conditions. Alteration ©f the equipment
©f ift the staclring ©f contain e rs shall r e quir e

t h ' 1 1 t li . i n r. -\ . ~ , ■ . Ii i «-."» r^^i r.i.tlnilri «-,-| i if^jT t ,-t |iT^^t

the pasteurizing requirements 4* Paragraph
(44 ©f th» ft«ler

(44 Chilling. The containers ef meat shall fee
chilled fey cooling te 444) degrees 44 within
40 minutes t© allow refrigerated storag e
within eee hour after processing.

444 Refrigeration. Refrigerated storag e shall
fee provided £©f the chilled Crustacea meat
ae4 shall maintain a storage temperature at
Bf below ^4 degrees 44 feet above 44 degrees

Statutory Authority G.S. 1 30 A- 230.

.0130 LABELING OF PASTEURIZED
CRUSTACEA MEAT

Labeling ©f past e uriz e d Crustac e a meat shall be
m compliance svith the following:

444> Designation ef Contents. The label used
shall cl e arly identify the contents ef the
contain e r as past e urized Crustac e a meat .
Whenever the term "crab moat," "lobst e r
meat," "shrimp" fe* 4s equivalent), appears
©» the label, the word "pasteurized" shall
be used 4* immediat e conjunction » typ e
©4- equal promin e nc e .

f34 Coding. Fach container shall be perma
nontly ae4 legibly identified with a code 4t-
dicating the batch aftd ^etf ©f proc e ssing.

444 Rofrigoration. The words "Porishablo -
Koop Under Rofrigoration," ©f the* e quiv
alent, shall fee prominontly displayod ©ft the

Statutory Authority G.S. 130A-230.

.0131 SEVERABILITY

4f asy provision ef th e s e Rules, ©f the applica
tie» thereof te a»y peroon ee circumstanco, k>
hek4 invalid, the remainder ©f the rulos, ©f the
application ©f such provisions te- other persons
©f circumstanc e s shell Ret- fee affoctod thereby.

Statutory Authority G.S. J30A-230.

.0132 APPEALS PROCEDURE

Appeals shall fee conductod m accordance with
G^.444T4

Statutory Authority G.S. 130A-230.

.0134 DEFINITIONS

The following definitions shall apply through-
out this Section:

( 1) "Adulterated" means the following:

(a) Any cooked Crustacea or Crustacea meat
that have been picked, packed or repacked
in a facility which has not been permitted
bv the Division in accordance with these
Rules;

(b) .Any cooked Crustacea or Crustacea meat
which exceed the bacteriological standards
in Rule .0183 of this Section;

(d) Any cooked Crustacea or Crustacea meat
which have been exposed to any condition
whereby it may have become contam-
inated; or

(e) Any cooked Crustacea which contain any
added substance, unless the substance is
approved by the Division, the United
States Food and Drug Administration or
the North Carolina Department of Agri-
culture.

(2) "Code date" means the date conspicuously
placed on the container to indicate the date
that the product was packed.

(3) "Cook" means to prepare or treat
Crustacea by heating.

(4) "Crustacea meat" means the meat of crabs,
lobster, shnmp or crayfish.

(5) 'Division" means the Division of Envi-

ronmental Health or its authorized agent.

(6) "Food-contact surface" means the parts
of equipment, including auxiliary - equip-

683

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

ment, which may be in contact with the
food being processed, or which may drain
into the portion of equipment with which
food is in contact.

(7) 'Fresh crustacea" means a live, raw or
frozen raw crab, lobster, shrimp or crayfish
which shows no decomposition.

(8) "Internal temperature" means the temper-
ature of the product as opposed to the am-
bient temperature.

(9) "Misbranded" means the following:

(a) Any container of cooked crustacea or
crustacea meat which is not labeled with
a valid identification number awarded by
regulatory authority of the state or coun-
try of origin of the cooked crustacea or
crustacea meat; or

(b) Any container of cooked crustacea or
crustacea meat which is not labeled as re-
quired by these Rules.

(10) "Operating season" means the season of
the year during which a crustacea product is
processed.

(1 1) "Pasteurization" means the process of
heating every particle of crustacea meat in a
hermetically-sealed 401 by 301 one pound
container to a temperature of at least 185°
F (85° C) and holding it continuously at or
above this temperature for at least one min-
ute in properly operated equipment ap-
proved by the Division; provided that
nothing in this definition shall be construed
as barring any other pasteurization process
which has been found equally effective and
which is approved by the Division.

(12) "Pasteurization date" means a code con-
spicuously placed on the container to indi-
cate the date that the product was
pasteurized.

(13) "Processing" means any of the following
operations when earned out in conjunction
with the cooking of crustacea or crustacea
meat: receiving, refrigerating, air-cooling,
picking, packing, repacking or pasteurizing.

(14) "Repacker" means a facility which repacks
cooked crustacea meat processed by a North
Carolina certified crustacea facility into other
containers.

(15) "Responsible person" means the individ-
ual present in a cooked crustacea facility
who is the apparent supervisor of the cooked
crustacea facility at the time of the in-
spection. If no individual is the apparent
supervisor, then any employee is the re-
sponsible person.

(16) "Sanitize" means the approved bactericidal
treatment by a process which meets the

temperature and chemical concentration
levels in 15A NCAC 18A .2619.

Statutory Authority G.S. I30A-230.

.0135 PERMITS

(a) No person shall operate a cooked crustacea
facility without a permit issued by the Division.

(b) No person shall operate a repacker facility
without a repacker permit issued by the Division.

(d) No permit shall be issued by the Division
until an inspection shows that the facility and
equipment comply with applicable rules of this
Section.

(e) A permit issued to one person is not trans-
ferable to another person.

(f) The permit shall be posted in a conspicuous
place in the facility. All permits shall expire on
March 31 of each year.

(g) Plans and specifications for proposed new
construction, expansion of operations or changes
in operating processes shall be submitted to the
Division for review and approval prior to begin-
ning construction or placing equipment.

(h) A permit may be revoked or suspended
pursuant to G.S. 130A-23.

(i) The owner or responsible person shall sign
the completed inspection sheet to acknowledge
receipt of the inspection sheet.

Statutory Authority G.S. 130A-23; 130A-230.

.0136 APPLICABILITY OF RULES

The rules in this Section shall apply to the op-
eration of all facilities and persons permitted in
Rule .0135 of this Section and all other busi-
nesses and persons that buy, sell, transport or
ship cooked crustacea or crustacea meat.

Statutory Authority G.S. I30A-230.

.0137 GENERAL REQUIREMENTS FOR
OPERATION

(a) During the operating season the processing
portion of the facility shall be used for no pur-
pose other than the processing of cooked
crustacea or crustacea meat.

(b) Retail sales of cooked crustacea or
crustacea meat shall not be made from any
processing portion of the facility.

tained for the following cooked crustacea or
crustacea meat products:

(1) Fresh : 60 days.

(2) Frozen - j_ year.

7:7 NORTH CAROLINA REGISTER July I, 1992

6S4

PROPOSED RULES

(3) Pasteurized - J_ year.
Statutory Authority G.S. 130A-230.

.0138 SUPERVISION

(a) The owner or responsible person shall su-
pervise the processing operation and be respon-
sible for compliance with the rules of this
Section.

(b) No unauthorized persons shall be allowed
in the facility during the periods of operation.

(c) The owner or responsible person shall ob-
serve employees daily to ensure compliance with
Rule .0154 of this Section.

Statutory Authority G.S. I30A-230.

.0139 FACILITY CONSTRUCTION

Cooked Crustacea facilities shall be sized and
constructed to permit compliance with the oper-
ational provisions of this Section.

Statutory Authority G.S. 130 A- 230.

.0140 FACILITY LOCATION

A cooked Crustacea facility constructed after
October ]_, 1992 shall be located so that it will
not be subject to flooding. If the facility floors
are flooded, processing shall be discontinued un-
tiJ flood waters have receded and the facility and
equipment are cleaned and sanitized. Any
cooked Crustacea or Crustacea meat which may
have been contaminated bv flood waters shall be

deemed adulterated and disposed of in accord-
ance with G.S. 13()A-21(c).

Statutory Authority G.S. I30A-230.

.0141 FLOORS

Floors shall be of concrete or other equally
i mper

:rvious material^ constructed so that thev

may be easily cleaned and shall be sloped so that
water drains.

Statutory Authority G.S. 130A-230.

.0142 WALLS AND CEILINGS

(a) Walls and ceilings shall be constructed of
smooth. easily cleanable. non-corrosive,
impervious material.

(b) Insulation on cooked Crustacea cooler walls
shall be covered to the ceiling with a smooth,
easily cleanable, non-corrosive, impervious ma-
terial.

Statutory Authority G.S. 130 A- 230.

.0143 LIGHTING

(a) Natural or artificial lighting shall be pro-
vided in all parts of the facility. Minimum
lighting intensities shall be as follows:

( 1) 50 foot-candles on working surfaces in the
picking and packing rooms and areas.

(2) 10 foot-candles measured at a height of 30
inches above the floor throughout the rest
of the processing portion of the facility.

(b) Light bulbs within the processing portion
of the facility shall be shatterproof or shielded to
prevent product contamination in case of
breakage.

Statutory Authority G.S. 130A-230.

.0144 VENTILATION

All rooms and areas shall be ventilated to elim-
inate odors and condensation.

Statutory Authority G.S. 130A-230.

.0145 INSECT CONTROL

All outside openings shall be screened, provided
with wind curtains or be provided with other
methods to eliminate the entrance of insects.
All screens shall be kept in good repair. All
outside doors shall open outward and shall be
self-closing. The use and storage of pesticides
shall comply with all applicable State and Federal
laws and rules.

-j- Statutory Authority G.S. J30A-230.

.0146 RODENT AND ANIMAL CONTROL

Measures shall be taken to keep animals, fowl,
rodents, and other vermin out of the facility.
The storage and use of rodenticides shall comply
with all applicable State and Federal laws and

Statutory Authority G.S. 130A-230.

.0147 PREMISES

(a) Premises under the control of the owner
shall be kept clean at all times. Waste materials,
rubbish, other articles or litter shall not be per-
mitted to accumulate on the premises. Other
items shall be properly stored.

(b) Measure shall be taken to prevent the
harborage and breeding of insects, rodents and
other vermin on premises.

Statutory Authority G.S. 130A-230.

.0148 WATER SUPPLY

(a) The water supply used shall be in accord-
ance with I5A NCAC 18A .1700.

6S5

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

(b) A cooked Crustacea facility using a non-
community water supply shall be listed with the
Public Water Supply Section, Division of Envi-
ronmental Health.

(c) Water samples for bacteriological analysis
shall be collected at least annually by the Divi-
sion and submitted to the Laboratory Division
of the Department or another laboratory' certified
by the Department for analysis.

(d) Cross-connections with unapproved water
supplies are prohibited. Hot and cold running
water under pressure shall be provided to food
preparation, utensils and handwashing areas and
any other areas in which water is required for
cleaning. Running water under pressure shall be
provided in sufficient quantity to carry out all
food preparation, utensil washing, hand washing,
cleaning and other water-using operations.

Statutory Authority G.S. BOA- 230.

.0149 ICE

(a) Ice shall be obtained from a water supply
approved by the Division pursuant to Rule .0148
of this Section and shall be stored and handled
in accordance with these Rules.

(b) All equipment used in the handling of ice
shall be used for no other purpose and shall be
cleaned and sanitized at least once each day the

facility is in operation.

Statutory Authority G.S. BOA-230.

.0150 PLUMBING

(a) Plumbing fixtures shall be located to facili-
tate the flow of processing activities and to pre-
vent the splashing of water on food-contact
surfaces or cooked Crustacea and Crustacea meat.

Fixtures

, ducts and

pipes

shall not

sus-

pended over \v

orking areas.

l£l

Handwas

h lavatories

shall be located

that

the supervisor can readily observe that employees
wash and sanitize their hands before beginning
work and after each interruption.

(d) Handwash lavatories shall be provided in
the following locations:

(1) Cooking area.

(2) Packing room or area.

(3) Toilet or lounge area.

(4) Picking room.

(e) At least one handwash lavatory shall be
provided for even' 20 employees among the first
100 employees and at least one handwash
lavatory' shall be provided for every 25 employees
in excess of the first 100 employees.

(f) Additional lavatories required by Paragraph
(e) of this Rule shall be located in the picking
room.

(g) A container shall be located near each
handwash lavatory in the picking room and
packing room or area to sanitize hands in a sol-
ution containing at least 100 parts per million
(ppm) of available chlorine or other equally ef-
fective bactericide. A suitable testing method or
equipment shall be available and regularly used
to test chemical sanitizers to insure minimum
prescribed strengths.

(h) Soap and single service towels in protected
dispensers, or other approved hand drying de-
vices, shall be available near the handwash
lavatories.

(i) .All pre-cool rooms, picking rooms, packing
rooms or areas, and cooking areas shall be pro-
vided with hosebibs and wash down hoses.
Storage racks shall be provided to keep the hoses
elevated off the floor when not in use.

(j) An automatically regulated hot-water sys-
tem shall be provided to furnish a sufficient vol-
ume of hot water with a temperature of at least
130° F (54.5° C) to carry out all processing op-
erations.

(k) All handwash lavatories and sinks shall be
equipped with mixing faucets.

(1| A three-compartment sink with drainboards,
large enough to wash the largest utensils used in
the facility, shall be located in the picking room
near the delivery shelf. One three-compartment
sink, with drainboards, shall be provided for ev-
ery 50 employees or fraction thereof.

(m) The floor drains in coolers shall not be
connected directly to a sewer in cooked Crustacea
facilities constructed after October h 1992.

Statutory Authority G.S. BOA-230.

.0151 SEWAGE DISPOSAL

/Ml sewage and other liquid wastes shall be dis-
posed of in a public sewer system or in the ab-
sence of a public sewer system, by an on-site
method approved by the Division or the De-
partment of Environment, Health, and Natural
Resources.

Statutory Authority G.S. BOA-230.

.0152 TOILETS

(a) Toilets shall be provided on the premises,
(h) Toilet tissue shall he provided.

(d) Privies shall not be allowed for any cooked
Crustacea facility constructed after October _F
1992.

Statutory Authority G.S. BOA-230.

7:7 NORTH CAROLINA REGISTER July I, 1992

6S6

PROPOSED RULES

.0153 SOLID WASTE

(a) Cooked Crustacea scrap and other
putrescible wastes shall be removed from the
premies at least daily. ( )ther solid wastes shall
be removed from the premises at least weekly.

(b) Scrap containers shall be removed from the
picking room immediately after tilling and placed
in storage areas approved by the Division.

(d) Scrap containers shall be cleaned in an area
approved by the Di vision.

Statutory Authority G.S. J30A-230.

.0154 PERSONAL HYGIENE

(a) All employees shall wash their hands with
soap and running water before beginning work
and again after each interruption. Signs to this
effect shall be posted in conspicuous places in the
facility by the owner.

(b) All persons handling cooked Crustacea or
crustacea meat shall sanitize their hands before
beginning work and again after each interruption.

(c) All persons employed or engaged in the
handling, picking or packing of cooked crustacea
or crustacea meat shall wear clean, washable
outer clothing.

(d) Fmployees shall not eat food, drink nor use
tobacco in any form in the areas where cooked
crustacea or crustacea meat are stored, processed
or handled.

(e) Anv person known to be a carrier of any
disease which can be transmitted through the
handling of cooked crustacea or crustacea meat
or who has an infected wound or open lesion on
any exposed portion of the body shall be pro-
hibited from handling cooked crustacea or
crustacea meat.

(f) Hair restraints shall be worn bv all employ-
ees who handle cooked crustacea or crustacea
meat.

(g) The arms of personnel who pick or pack
cooked crustacea or crustacea meat shall be bare
to the elbow or covered with an arm guard ap-
proved bv the Division.

(h) Personnel who pick and pack cooked
crustacea or crustacea meat shall have clean short
fingernails, free from nail polish and shall not
wear jewelry' other than easily cleanable rings.
The use of absorbent wraps or absorbent finger
cots shall not be permitted.

Statutory Authority G.S. I30A-230.

.0155 PERSONAL STORAGE

Storage areas shall be provided for storing em-
ployees' street clothing, aprons, gloves and per-
sonal articles.

Statutory Authority G.S. I30A-230.

.0156 SUPPLY STORAGE

Shipping containers, boxes and other supplies
shall be stored in a storage room or area. The
storage room or area shall be kept clean.

Statutory Authority G.S. 130A-230.

.0157 EQUIPMENT AND UTENSIL
CONSTRUCTION

All processing equipment and utensils shall be
smooth, easily cleanable, durable and kept in
good repair. The food-contact surfaces of
equipment, utensils and processing machinery
shall be easily accessible for cleaning, non-toxic,
non-corrosive, non-absorbent and free of open

seams.

Statutory Authority G.S. 130A-230.

.0158 FACILITY AND EQUIPMENT
SANITATION

(a) The walls and floors in the picking and
packing areas shall be kept clean while operating
and shall be sanitized at least daily or more often
as necessary to prevent contamination.

(b) All food-contact surfaces shall be washed,
rinsed and sanitized prior to starting operation
each day or more often as necessary to prevent
contamination.

(c) Reusable picking containers and knives
shall be washed, nnsed and sanitized each time
crustacea meat is delivered to the packing room.

(d) Sanitizing methods are as follows:

( 1) By steam in a steam chamber or box
equipped with an indicating thermometer
located in the coldest zone, bv exposure
to a temperature of 1 70° F (77° C) for at
least 15 minutes or to a temperature of
200 a F (93° C) for at least five minutes.

(2) By immersion for at least one minute in
the third compartment in clean hot water
at a temperature of at least 170° F (77°
C). A thermometer accurate to + 3° F
( + 1.5° C| shall be available to the com-
partment. Where hot water is used for
bactericidal treatment, a booster heater
that maintains a water temperature of at
least 170° F (77° C| in the third compart-
ment at all times when utensils are being
washed shall be provided. The heating
device may he integral with the immersion
compartment.

687

7:7 NORTH CAROLINA REGISTER July I, 1992

PROPOSED RULES

(4}

(3) By immersion for at least one minute in,
or exposure for at least one minute to a
constant flow of, a solution containing
not less than 100 ppm chlorine residual.
Utensils and equipment which have to be
washed in place will require washing,
rinsing and sanitizing.
By other equivalent products and proce-
dures approved in 21 CFR 178.1010
"Sanitizing solutions" from the "Food
Service Sanitation Manual" published by
the U.S. Food and Drug Administration.
2\ CFR 178.1010 is hereby incorporated
by reference including any subsequent
amendments and editions. This material
is available for inspection, and copies may
be obtained at no cost, at the Shellfish
Sanitation Branch, 3441 Arendell Street,

P.O. Box 769, Morehead City, North
Carolina 28557. A suitable testing
method or equipment shall be available
and regularly used to test chemical
sanitizers to insure minimum prescribed
strengths.

Statutory Authority G.S. 130 A- 230.

.0159 EQUIPMENT STORAGE

Equipment and utensils which have been
cleaned and sanitized shall be stored to protect
against contamination.

Statutory Authority G.S. 130A-230.

.0160 SEPARATION OF OPERATIONS

(a) Facility design shall provide for continuous
flow of raw materials and product to prevent
contamination by exposure to areas involved in
earlier processing steps, refuse or other areas
subject to contamination.

(b) The following processes shall be carried out
in separate rooms or areas:

( 1) Raw crustacea receiving or refrigeration.

(2) Crustacea cooking.

(3) Cooked crustacea air-cool.

(4) Cooked crustacea refrigeration.

(5) Picking. "

(6) Packing.

(7) Picked crustacea meat refrigeration.

(8) Pasteurizing.

(9) Machine picking.

(10) Other processes when carried out in
conjunction with the cooking of crustacea
or crustacea meat.

Statutory Authority G.S. I30A-230.

.0161 RAW CRUSTACEA RECEIVING AND

REFRIGERATION

(a) Only fresh crustacea shall be accepted for
processing.

(b) Crustacea shall be cooked within two hours
of receipt at the facility or be placed in a refrig-
erated area maintaining a temperature of 50° I

( 10° C) or below.

(21

Statutory Authority G.S. I30A-230.

.0162 CRUSTACEA COOKING

(a) The cooking area or room shall be under a
roof located between the area for receiving raw
crustacea and the air-cool room and shall be
vented to assure the removal of steam.

(b) Crustacea shall be cooked in accordance
with the following:

( 1) Crabs shall be cooked under steam pres-
sure until the internal temperature of the
center-most crab reaches 235° P ( 1 12.8°
C). Temperature shall be measured with
an accurate, indicating thermometer hav-
ing a range of 170-270° F (77-132° C).
Other crustacea shall be cooked until the
internal temperature of the center-most
crustacean reaches 180° F (83° C) and is
held at this temperature for one minute.
Temperature shall be measured with an
accurate, indicating thermometer.

Crayfish shall be culled and cleaned prior
to cooking.

Nothing in this Rule shall prohibit am
other cooking process which has been
found equally effective and approved by
the Division.

(c) The retort shall be constructed to permit a
working pressure of at least 20 pounds per square
inch (psig). Steam inlet and venting shall provide
a uniform and complete distnbution of steam.
Venting shall be sufficient to permit complete
elimination of air from the retort. Drains and
vents shall be located at least two feet above
mean high tide.

[3}

(d) Ihe retorts shall be equipped with:

( 1) An accurate, indicating thermometer with
a range that will include 170-270° F
(77-132° C) and located with the sensor
extending into the heat chamber.

(2) An operating pressure indicator, at least
three inches in diameter, with a 0-30 psig
range and located adjacent to the indicat-
ing thermometer.

(3) A safety valve operational at 18-30 psig,
located in the upper portion of the retort,
protected from tampering and designed to
prevent injury to the operator.

(e) The boiler shall be of such capacity as to
maintain 45 to 100 psig during cooking. The

7:7 NORTH CAROLINA REGISTER July 1, 1992

688

PROPOSED RULES

steam line from the boiler to the retort shall be (e) If provided, bactericidal solutions at picking

solution or an equivalent bactericidal solution

at least one and one-fourth inch mside diameter. tables shall be maintained at 100 ppm chlorine

I f ) Overhead hoists shall be equipped with
chain bass or other means of preventing foreign
material from falling onto the cooked product.

(2) Retort cooking baskets shall be of stainless

steel or equally impervious, non-corrosive and
durable material, and shall be designed to allow
for equal steam disbursement, ease of handling,
dumping and cleaning.

(h) All construction or replacement of retorts
after October _h 1992 shall be 'now-through"
tvpe and opening directly into the air-cool room
or a protected passageway into the air-cool room.

Statutory Authority G.S. I30A-230.

.0163 COOKED CRUSTACEA AIR-COOL

fa) Cooked Crustacea, after removal from the
retort, shall be moved immediately to the cooked
Crustacea air cool area to be air cooled to ambi-
without

ent temperature
Cooked Crustacea
cooking basket.

being disturbed.

shall be stored in onginal

(b) The construction and arrangement of the
air-cool room shall be designed to provide pro-
tection from contamination of the cooked
Crustacea. The air-cool room shall open directly
into the cooked Crustacea cooler or other pro-
tected area.

Statutory Authority G.S. 130A-230.

.0164 COOKED CRUSTACEA REFRIGERATION

(a) The cooked Crustacea cooler shall be large
enough to store all cooked Crustacea and main-

tain a minimum temperature of 4jT F (4.4 J C).
The cooler shall open directly into the picking
room or mto a clean, enclosed area leading into
the picking room.

(b) Cooked Crustacea shall be stored at a tem-
perature between 3F F (0.5 ; C) and 40° F (4.4°
C) ambient air temperature if not lmmediatel
processed. The cooler shall be equipped with an
accurate, operating thermometer.

Statutory Authority G.S. 130A-230.

.0165 COOKED CRUSTACEA PICKING

(a) The picking operation shall be conducted
in a manner to prevent contamination.

(b) All cooked Crustacea shall be picked before
a new supply is delivered to the picking table.

(c) Picked Crustacea meat shall be delivered to
the packing room at least every 90 minutes or
upon the accumulation of five pounds per picker.

I'd) Paper towels used at the picking table shall
be discarded after initial use.

A suitable testing method or equipment shall be
available and used to test chemical sanitizers to
insure minimum prescribed strengths.

(T) Handles of picking knives shall not be cov-
ered with any material.

(g) Picking of Crustacea cooked at any facility

other than the original cooking facility, is pro-
hibited. Mechanical picking of claws may be
approved under written authority from the Divi-
sion if it complies with these Rules.

Statutory Authority G.S. 130A-230.

.0166 PACKING

(a) Crustacea meat shall be packed in a con-
tamer, iced and cooled to an internal temperature
of 40 1 F (4.4 C C) or below within two hours of
receipt in the packing room.

(b) The storage of ice in the packing room shall
be in an easily cleanable, non-corrosive, non-
toxic container.

( 1 ) Fresh Crustacea meat.

(2) Frozen Crustacea meat.

(3) Pasteurized Crustacea meat.

(4) Crustacea meat packed in another facility,
fd) Clean shipping containers shall be provided
for storing and shipping of packed Crustacea
meat.

(e) The return of overage to a picker shall be
prohibited.

(f) Washing of picked Crustacea meat shall be
under running potable water. The Crustacea
meat shall be thoroughly drained prior to pack-
ing.

(g) Anv substance added to cooked Crustacea
or Crustacea meat shall be approved and labeled
according to Federal and State rules and regu-
lations.

(h) No unauthorized personnel shall be allowed
in the packing room or area.

Statutory Authority G.S. 130A-230.

.0167 PICKED CRUSTACEA MEAT
REFRIGERATION

fa) The refrigeration room or ice box shall be
of sufficient size so that a full day's production,
with ice, can be properly stored and shall be
equipped with an accurate, operating
thermometer.

(b) Ice boxes shall be easily cleanable, non-
corrosive, non-toxic with an impervious lining
and a drain.

6S9

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

tween 33° F (0.5° C) and 40° F (4.4° C).
Statutory Authority G.S. I30A-230.

.0168 DELIVERY WINDOW OR SHELF

A delivery window or a non-corrosive shelf shall
be" provided between the picking room and
packing room or area. The delivery window
shall be equipped with a shelf completely covered
with smooth, non-corrosive metal or other ma-
terial approved by the Division and sloped to
drain towards the picking room.

Statutory Authority G.S. I30A-230.

.0169 SINGLE-SERVICE CONTAINERS

(a) Single- service containers used for packing
cooked Crustacea and Crustacea meat shall be
made from approved materials.

(b) Containers shall not be reused for packing
cooked Crustacea and Crustacea meat.

(d) Each container shall be legibly impressed,
embossed or lithographed with the name and
address of the original packer, repacker or dis-
tributor. The original packer's or repacker's
permit number preceded by the state abbrevi-
ation shall be legibly impressed, embossed or
lithographed on each container.

(e) Each container shall be permanently and
legibly identified with a code date.

(f) All containers shall be stored and handled
in accordance with these Rules, sanitized by a
procedure as stated in Rule .0158 of this Section
and drained prior to filling.

(g) .All containers shall be sealed so that
tampering can be easily detected.

Statutory Authority G.S. I30A-230.

.0170 FREEZING

(a) If Crustacea meat is to be frozen, it shall be
frozen within 48 hours of packing and the code
date shall be followed by the letter "F.'

(b) Frozen Crustacea meat shall not be thawed
prior to sale.

(c[ Frozen Crustacea meat shall be stored at a
temperature of 0°_ F (-18° C) or less.

(d) The frozen storage rooms shall be equipped
with an accurate, operating thermometer.

Statutory Authority G.S. I30A-230.

.0171 SHIPPING

shipped between 33° F (0.5° C) and 40° F (4.4°
C). Frozen Crustacea products shall be shipped
at 0° F (-18° C) or below.

Statutory Authority G.S. 130A-230.

.0172 WHOLE CRUSTACEA OR CRUSTACEA
PRODUCTS

Whole Crustacea, claws or any other Crustacea
products shall be prepared, packaged and labeled
in accordance with the rules of this Section.

Statutory Authority G.S. 130A-230.

.0173 COOKED CLAW SHIPPING
CONDITIONS

(a) Vehicles used to transport cooked claws
shall be mechanically refrigerated, enclosed,
tightly constructed, kept clean and equipped with
an operating thermometer.

(b) Cooked crab claws shall be stored and
transported between 33° ? (0.5° C) and 40° F
(4.4° C) ambient air temperature.

(d) Cooked claw shipping containers shall be
marked for intended use, cleaned and sanitized
prior to use and approved by the Division.

Statutory Authority G.S. I30A-230.

.0174 REPACKING

(a) Crustacea meat for repacking shall be
processed in a North Carolina certified Crustacea
facility in compliance with Rules .0134 through
.0183 of this Section.

(b) The repacker shall have a written agreement
with each facility which provides Crustacea meat
for repacking. The Division shall be provided a
copy of this written agreement.

(d) Crustacea meat for repacking shall be re-
packed within 48 hours of the original packing.

(e) Crustacea meat for repacking shall be in
compliance with the following:

( 1) Packed in original shipping container or
in a single service container labeled for
"Repacking Only":
Identified with original packer's certif-

(Jl

ication number and code date; and

(3) Iced and cooled to 40° F (4.4° C) or below
within two hours of receipt in packing
room.
(f) Shipping of Crustacea meat for repacking
shall be in compliance with the following:

7:7 NORTH CAROLINA REGISTER July 1, 1992

690

PROPOSED RULES

(1) Vehicles used to transport Crustacea meat
for repacking shall be mechanically refrig-
cr.iKxl, enclosed, tightly constructed and
equipped with an operating thermometer.

(2 1 Crustacea meat for repacking shall be
stored and transported between 33 3
(0.5 : C) and 40 : F (4.4- C).

(3) The interior shipping compartment of the
yehicle shall be cleaned prior to shipment
of Crustacea meat for repacking.

(4) "I he shipment shall consist only of proc-
essed and packaged Crustacea meat.

(5) Vehicle ; shall be approved as part of the
facility certification.

(g) Repacking of Crustacea meat

(l) Records shall be kept for all purchases of
Crustacea meat for repacking and sales of re-
packed meat for one year.

Statutory Authority G.S. 130A-230.

.0175 PASTEURIZATION PROCESS

CONTROLS - THERMOMETERS

fa) All pasteurizing equipment shall have a
time-temperature recording thermometer with a
temperature controller (combined or separately)
and an indicating thermometer. The

thermometers shall be located to give a true rep-
resentation of the operating temperature of the
water bath. The recording thermometer chart

Li!

(21

Crustacea meat shall not exceed 45° F sha ^ k| at least a 12-hour chart and at least 10
(7. 1 : C) during the repacking process.

inches in diameter.

Repacking shall be conducted separately
bv time or space from the routine
Crustacea meat picking and packing proc-
ess.

The food contact surfaces and utensils
utilized in the repacking process shall be
cleaned and sanitized prior to repacking
and thereafter on 30 minute intervals dur-
ing repacking.

Repacked Crustacea meat shall be main-
tained between 33J F (H.5 : Q and 40_ F
(4.4 : C).

(5) Blending or combining of any of the fol-
lowing shall be prohibited:

(A) Fresh Crustacea meat.

(B) Frozen Crustacea meat.
(Cl Pasteurized Crustacea meat.

(D) Crustacea meat packed in another fa-
cility.

(6) Crustacea meat shall not be repacked more
than one time.

(7) All empty containers shall be rendered
unusable.

(h) Fabeling of repacked Crustacea meat:
( 1 ) Fach container shall be legibly embossed.

impressed or lithographed with the re-
packer s or the distributor's name and ad-
dres
(2) Fach container shall be legibly embossed,
impressed or lithographed with the re-
packer s certification number followed bv
the letters "RP."

<Jl

Fach container shall be permanently and
legiblv identified with a code indicating
the repack date.

:pac

(4) Fach container shall be sealed so that
tampering can be easily detected,
(i) Repacked Crustacea meat shall meet
bacteriological and contamination standards in
Rule .HI S3 of this Section.

(b) The recording thermometer shall be in-
stalled so that it will be protected from vibration
and from striking bv loading operations or facility
traffic . 1 he thermometer mechanism shall be
protected from moisture under prevailing condi-
tions. The thermometer case shall not be opened
during the pasteurizing cycle, except for temper-
ature check or for emergency or repair. A record
shall e made when the thermometer case has
been opened.

(c) The recording thermometer shall have a
range of at least 1 20-220 F (4S.9-1U4.4 ; C). It
shall be accurate within plus or minus 1" F be-

tween 160 : F (IV C) and 2UCP F (93_ Cj. The
chart shall be scaled at a maximum of 2 1 F in-

160= F (7T Ci and 200°

tervals in the range of
C).

F (93'

(di The indicating thermometer _

thermometer with an accuracy and readability of

lus or minus 1 between 160 D F (71 3 C) and

shall be a

200' F (93' C). The thermometer shall be
protected against damage.

The recording thermometer shall be
equipped with a spring-operated or electricall\
operated clock. "I he recorded elapsed time as
indicated bv the chart rotation shall not exceed
the true elapsed time as shown bv an accurate
watch. The rotating chart support shall be pro-

vided with pins upon which the chart shall be
affixed bv puncturing the chart.

(f| The pasteurization unit shall not be oper-
ated without a recording thermometer chart in
place, the pen in contact with the chart and an
inked record being made of the operating time-
temperature evcle Anv indication ot falsification
of a thermometer chart shall constitute a vio-
lation. A permanent tile of the used
thermometer charts shall be maintained bv the
pasteurizer and kept available tor inspection bv
the Division for a period of one year. The fol-
lowing information shall be recorded within the

691

7:7 NORTH CAROLINA REGISTER July I, 1992

PROPOSED RULES

confines of the pen markings after the
pasteurization cycle has been completed:

(1) Date of pasteurization.

(2) Quantity of each batch pasteurized
(pounds of Crustacea meat or number and
size of containers).

(3) Processor's code of each pack.

(4) If the pasteurizer processes Crustacea meat
for someone else, then the packer's name,
address and permit number must be re-
corded. A copy of the recording chart
shall be provided to the owner of the
crustacea meat.

(5) Notation of mechanical or power failure
or opening of the recording thermometer
case for adjustment or repair during the
pasteurizing cycle.

(6) After the optimum temperature in the
water bath has been reached and during
the holding time, the reading of the indi-
cating thermometer and the time of read-
ing shall be recorded on the chart.

(7) Signature of the pasteurizer operator.

(g) A constant flow steam control valve is re-
quired, if steam is used as a source of heat.

(h) The water bath shall be provided with ef-
fective agitation to maintain a uniform temper-
ature.

Statutory Authority G.S. I30A-230.

.0176 PREPARATION OF CRUSTACEA MEAT
FOR PASTEURIZATION

The preparation of crustacea meat for
pasteurization shall be in compliance with the
following:

(1) Crustacea meat shall be prepared in com-
pliance with Rules .0134 through .0183 of
this Section.

(2) The containers of crustacea meat shall be
sealed as quickly as possible after the
crustacea meat is picked.

(3) The sealed container of crustacea meat shall
be placed immediately in ice and refrigerated
until pasteurized.

Statutory Authority G.S. 130A-230.

.0177 PASTEURIZATION OF CRUSTACEA
MEAT

The pasteurization of crustacea meat shall be in
compliance with the following:

(1) Crustacea meat for pasteurization shall be
pasteurized within 48 hours of the time it is
picked. The minimum pasteurization spec-
ifications shall be the raising of the internal
temperature of the container of crustacea
meat to 185° F (85^ C] and holding at that

temperature for at least one minute at the
geometric center of a container. Each set
of pasteurizing equipment shall be stand-
ardized so that the minimum pasteurization
procedure in this Subparagraph can be ob-
tained. The pasteurization procedure shall
be performed in accordance with the stand-
ardization report. This process shall also be
posted adjacent to the pasteurization vat.
The pasteurizer shall keep on file the stand-
ardization report and shall provide the Divi-
sion a copy of such report.

(2) Alteration of the equipment or loading of
containers shall require the procedure be re-
standardized.

(3) The containers of crustacea meat shall be
cooled to 502 H (10° C) or below within
three hours.

(4) Refrigerated storage shall be provided for
the cooled crustacea meat and shall maintain
a storage temperature at or below 36° i
(2.2° C) but above 32° F (0° C).

Statutory Authority G.S. 130A-230.

.0178 LABELING OF PASTEURIZED
CRUSTACEA MEAT

Labeling of pasteurized crustacea meat shall be
in compliance with the following:

( 1) The label used shall clearly identify the
contents of the container as pasteurized
crustacea meat.

(2) Hach container shall be permanently and
legiblv identified with a code indicating the
batch and day of processing.

(3) The words "Perishable- Keep Under Re-
frigeration", or equivalent, shall be promi-
nently displayed on the container.

(4) The original packer's or repacker's permit
number preceded by the state abbreviation
shall be legibly impressed, embossed or
lithographed on each container. Bach con-
tainer shall be legibly impressed, embossed
or lithographed with the name and address
of the original packer, repacker or distribu-
tor.

Statutory Authority G.S. 130A-230.

.0179 INTERFACILITY PASTEURIZATION
PROCEDURES

No person shall initiate intcrfacility
pasteurization of crustacea meat without prior
written approval by the Division. Intcrfacility
pasteurization of crustacea meat shall be in con-
junction with the following:

( 1) Crustacea meat shall be packed, labeled and
refrigerated in compliance with Rules .0134

7:7 NORTH CAROLINA REGISTER July 1, 1992

692

PROPOSED RULES

through .0183 of this Section. Records shall
be maintained to identify each batch of
Crustacea meat pasteurized.

(2) Crustacea meat shall be shipped in an en-
closed, easily cleanable vehicle at a temper-
ature between 33' F (0.5° C) and 40 ; F (4.4'

(3) Crustacea meat shall be pasteurized in

compliance with Rules .0176 through .0178
of this Section. The pasteurizxr shall pro-

vide a copy of each pasteurization chart to
the original packer.

Statutory Authority G.S. 1 30.4-230.

.0180 RECALL PROCEDURE

Each owner of a cooked Crustacea or Crustacea
meat facility or repacker facihtv shall keep on tile
a wntten product recall procedure. A copy of
this recall procedure shall be provided to the Di-
vision.

Statutory Authority G.S. J30A-230.

.0181 SAMPLING AND TESTING

Samples of cooked Crustacea or Crustacea meat
mav be taken and examined by the Division at
any time or place. Samples of cooked Crustacea
or Crustacea meat shall be furnished by the owner
or operator of facilities, trucks, carriers, stores,
restaurants and other places where cooked
Crustacea or Crustacea meat are sold.

Statutory Authority G.S. 130A-230.

.0182 EMBARGO OR DISPOSAL OF COOKED
CRUSTACEA OR CRUSTACEA MEAT

(a) When it has been determined by the Divi-

sion that cooked Crustacea or Crustacea meat
have not been stored, transported, handled,

cooked, picked, packed or offered for sale in
compliance with this Section, the cooked
Crustacea or Crustacea meat shall be deemed
adulterated.

(b) Cooked Crustacea or Crustacea meat pre-
pared for sale to the public determined to be
adulterated or misbranded, shall be subject to
embargo or disposal bv the Division in accord-
ance with G.S. 13Q.A-21(c). The Di vision mav
embargo, condemn, destroy or otherwise dispose
of all cooked Crustacea or Crustacea meat found
to be adulterated or misbranded.

Statutory Authority G.S. I30A-2I.

.0183 BACTERIOLOGICAL AND

CONTAMINATION STANDARDS

(a) Cooked Crustacea or Crustacea meat shall
not exceed Escherichia coli Most Probable

Number (MPN) of 36 per 100 grams of sample
or exceed a standard plate count of 100.000 per
gram.

(b) Pasteurized Crustacea meat shall contain no
Escherichia coli or fecal coliform. Samples of
pasteurized Crustacea meat, taken within 24
hours of pasteurizing, shall not have a standard
plate count of more than 3,000 per gram.

(c) Cooked Crustacea or Crustacea meat shall
not contain pathogenic organisms in sufficient
numbers to be hazardous to the public health.

(d) Cooked Crustacea or Crustacea meat shall
not be contaminated by any other substance
which renders it unsafe for human consumption.

(e) Cooked Crustacea or Crustacea meat found
not complying with the standards as stated in
Paragraph (a), (b), [cj or (dj of this Rule may
be deemed adulterated by the Division.

Statutory Authority G.S. I30A-230.

******************

iVotiee is hereby given in accordance with G.S.
150B-21.2 that the EHNR - Commission for
Health Services intends to amend rule(s) cited as
15 A NCAC 19 A .0201 - .0202 and adopt rule(s)
cited as 15A NCAC 19 A .0206 - .0207.

1 he proposed effective date of this action is Oc-
tober 1, 1992.

1 he public hearing will be conducted at the fol-
lowing times, dates and locations:

July 21, 1992

7:30 p.m.

New Bern High School

(Lecture Room!

4200 A cademic Drive

(offHwy. 17 South)

New Bern, NC

July 22, 1992

1:30 p.m.

Archives & History Bldg

(First Floor Auditorium)

109 E. Jones Street

Raleigh, NC

July 27, 1992

7:30 p.m.

Elevated Lecture Room

Simpson Administration Bldg

A sheville- Buncombe Technical College

693

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

340 Victoria Road
Ashevilk, NC

July 28. 1992

7:30 p.m.

Conference Center

Charlotte Mecklenburg Government Center

600 E. 4th Street

Charlotte, NC

J\easons for Proposed Actions: These proposed
rules address the issue of HIV and hepatitis B
transmission from health care workers to patients.
They were developed in response to recommen-
dations made by a panel of North Carolina pro-
fessionals knowledgeable about infectious diseases,
podiatrists, and nurses. The U.S. Congress has
required that each state adopt the CDC guidelines
on this topic or an equivalent policy or lose all
federal public health funding. These proposed
rules address infection control in general and pro-
vide for case-by-case review of HIV and hepatitis
B infected health care workers who perform or
assist in surgical and dental invasive procedures
and for appropriate notification of patients.

(comment Procedures: All persons interested in
these matters are invited to attend the public
hearing. Written comments may be presented at
the public hearing or may be submitted to:
Communicable Disease Control Section, P. O.
Box 27687, Raleigh, NC 27602-0629 with a copy
to John Barkley, Department of Justice, P. O. Box
629, Raleigh, NC 27602-0629, (919) 733-4618.
If you desire to speak at the public hearing, notify
John Barkley at least 3 days prior to the public
hearing. Oral presentation lengths shall be limited
depending on the number of people that wish to
speak at the public hearing. Only persons who
have made comments at a public hearing or who
have submitted written comments will be allowed
to speak at the Commission meeting. Comments
made at the Commission meeting must either
clarify previous comments or address proposed
changes from staff pursuant to comments made
during the public hearing process.

IT IS VERY IMPORTANT THAT ALL INTER-
ESTED AND POTENTIALLY AFFECTED PER-
SONS, GROUPS, BUSINESSES,
ASSOCIATIONS, INSTITUTIONS, OR AGEN-
CIES MAKE THEIR VIEWS AND OPINIONS
KNOWN TO THE COMMISSION FOR HEALTH
SERVICES THROUGH THE PUBLIC HEARING
AND COMMENT PROCESS, WHETHER THEY
SUPPORT OR OPPOSE ANY OR ALU PRO-
VISIONS OF THE PROPOSED RULES. THE
COMMISSION MAY MAKE CHANGES TO THE
RLLES AT THE COMMISSION MEETING IF

THE CHANGES
1508-21.2(0-

COMPLY WITH G.S.

CHAPTER 19 - HEALTH: EPIDEMIOLOGY

SUBCHAPTER 19A - COMMUNICABLE
DISEASE CONTROL

SECTION .0200 - CONTROL MEASURES FOR
COMMUNICABLE DISEASES

.0201 CONTROL MEASURES - GENERAU

(a) Except as provided in Rules .0202 - .0209
of this Section, the recommendations and guide-
lines for testing, diagnosis, treatment, follow-up,
and prevention of transmission for each disease
and condition specified by the American Public
Health Association in its publication, Control of
Communicable Diseases in Man shall be the re-
quired control measures. Control of
Communicable Diseases in Man is hereby incor-
porated by reference including subsequent
amendments and editions. Copies of this publi-
cation are available from the American Public
Health Association, Department JE, 1015 15th
Street, N.W., Washington, DC 20005 for a cost
of fifteen dollars ($15.00) each plus three dollars
($3.00) shipping and handling. A copy is avail-
able for inspection in the Communicable Disease
Control Section, Cooper Memorial Health
Building, 225 N. McDowell Street, Raleigh,
North Carolina 27611.

(b) In interpreting and implementing the spe-
cific control measures adopted in Paragraph (a)
of this Rule, and in devising control measures for
outbreaks designated by the State Health Direc-
tor and for communicable diseases and condi-
tions for which a specific control measure is not
provided by this Rule, the following principles
shall be used:

( 1 ) control measures shall be those which can
reasonably be expected to decrease the
risk of transmission and which are con-
sistent with recent scientific and public
health information;

(2) for diseases or conditions transmitted by
the airborne route, the control measures
shall require physical isolation for the du-
ration of infectivity;

(3) for diseases or conditions transmitted by
the fecal-oral route, the control measures
shall require exclusions from situations in
which transmission can be reasonably ex-
pected to occur, such as work as a paid
or voluntary food handler or attendance
or work in a day care center for the dura-
tion of infectivity;

(4) for diseases or conditions transmitted by
sexual or the blood-borne route, control

7:7 NORTH CAROLINA REGISTER July I, 1992

694

PROPOSED RULES

measures shall require prohibition of do-
nation of blood, tissue, organs, or semen,
needle-sharing, and sexual contact in a
manner likely to result in transmission for
the duration of infectivity.

(c) Persons with congenital rubella syndrome,
tuberculosis, and carriers of Salmonella typhi and
hepatitis B who change residence to a different
local health department jurisdiction shall notify
the local health director in both jurisdictions.

(d) Isolation and quarantine orders for
communicable diseases and communicable con-
ditions for which control measures have been es-
tablished shall require compliance with
applicable control measures and shall state pen-
alties for failure to comply. These isolation and
quarantine orders may be no more restrictive
than the applicable control measures.

fe} Health eaf© workers, including emergency
rcsponders a**d- funeral service personnel, shall
follow blood a«4 body fluid procautiono with all
patients.

/ 1 I \ 1 1 finmn m nnl iir^^ t .-v tMlrli^l it-.i \ -\ i i m i i r~t ,1,-in

^T/ ? TTT CTrnTTTTICTTT B3W l\J UU1II.IIJ1L' 1 1 LX1 1 1UJ I J1V 1 1 r

(*» medical ef other settings) must be disposed
»f » accordance with 44A NCAC 44S aftef use
&f sterilised prior te- rouso.

(§)■ (e) An individual enrolled in an
epidemiologic or clinical study shall not be re-
quired to meet the provisions of 15A NCAC 19A
.0201 - .0209 whuch conflict with the study pro-
tocol if:

(1) the protocol is approved for this purpose
by the State Health Director because of
the scientific and public health value of
the study, and

(2) the individual fully participates in and
completes the study.

Statutory' Authority G.S. BOA- 135; BOA- 1 44.

.0202 CONTROL MEASLRES - HIV

The following are the control measures for the
Acquired Immune Deficiency Syndrome (AIDS)
and Human Immunodeficiency Virus (HIV) in-
fection:
( 1 ) Infected persons shall:

(a) refrain from sexual intercourse unless
condoms are used; exercise caution when
using condoms due to possible condom
failure;

(b) not share needles or syringes;

(d) have a skin test for tuberculosis;

(e) notify future sexual intercourse partners
of the infection; if the time of initial in-
fection is known, notify persons who have

(2)
(a)

(b)

(3)

been sexual intercourse and needle part-
ners since the date of infection; and, if the
date of initial infection is unknown, notify
persons who have been sexual intercourse
and needle partners for the previous year.
The attending physician shall:
give the control measures in Paragraph (1)
of this Rule to infected patients, in ac-
cordance with 15A NCAC 19A .0210;

If the attending physician knows the
identity of the spouse of an HIV-infected
patient and has not, with the consent of
the infected patient, notified and coun-
seled the spouse appropriately, the physi-
cian shall list the spouse on a form
provided by the Division of Epidemiology
and shall mail the form to the Division;
the Division will undertake to counsel the
spouse; the attending physician's respon-
sibility to notify exposed and potentially
exposed persons is satisfied by fulfilling
the requirements of Subparagraph (2)(a)
and (b) of this Rule;

advise infected persons concerning proper
clean-up of blood and other body fluids;
advise infected persons concerning the risk
of perinatal transmission and transmission
by breastfeeding.

The attending physician of a child who is
infected with HIV and who may pose a sig-
nificant risk of transmission in the school or
day care setting because of open, oozing
wounds or because of behavioral abnor-
malities such as biting shall notify the local
health director. The local health director
shall consult with the attending physician
and investigate the circumstances.
(a) If the child is in school or scheduled for
admission and the local health director
determines that there may be a significant
risk of transmission, the local health di-
rector shall consult with an interdiscipli-
nary committee, which shall include
appropriate school personnel, a medical
expert, and the child's parent or guardian
to assist in the investigation and determi-
nation of risk. The local health director
shall notify the superintendent or private
school director of the need to appoint
such an interdisciplinary committee,
(i) If the superintendent or private school
director establishes such a committee
within three days of notification, the local
health director shall consult with this
committee.
(ii) If the superintendent or private school
director does not establish such a com-
mittee within three days of notification,

695

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

the local health director shall establish
such a committee.

(b) If the child is in school or scheduled for
admission and the local health director
determines, after consultation with the
committee, that a significant risk of trans-
mission exists, the local health director
shall:

(i) notify the parents;

(ii) notify the committee;

(hi) assist the committee in determining
whether an adjustment can be made to the
student's school program to eliminate sig-
nificant risks of transmission;

(iv) determine if an alternative educational
setting is necessary to protect the public
health;

(v) instruct the superintendent or private
school director concerning appropriate
protective measures to be implemented in
the alternative educational setting devel-
oped by appropriate school personnel;
and

(vi) consult with the superintendent or pri-
vate school director to determine which
school personnel directly involved with
the child need to be notified of the HIV
infection in order to prevent transmission
and ensure that these persons are in-
structed regarding the necessity for pro-
tecting confidentiality.

(c) If the child is in day care and the local
health director determines that there is a
significant risk of transmission, the local
health director shall notify the parents that
the child must be placed in an alternate
child care setting that eliminates the sig-
nificant risk of transmission.

(4) When health care workers or other persons
have a needlestick or nonsexual non-intact
skin or mucous membrane exposure to
blood or body fluids that poses a significant
risk of HIV transmission, the following shall
apply:
(a) When the source person is known:

(i) The attending physician or occupational
health care provider responsible for the
exposed person, if other than the attend-
ing physician of the person whose blood
or body fluids is the source of the expo-
sure, shall notify the attending physician
of the source that an exposure has oc-
curred. The attending physician of the
source person shall discuss the exposure
with the source and shall test the source
for HIV infection unless the source is al-
ready known to be infected. The attend-
ing physician of the exposed person shall

be notified of the infection status of the
source,
(ii) The attending physician of the exposed
person shall inform the exposed person
about the infection status of the source,
offer testing for HIV infection as soon as
possible after exposure and at reasonable
intervals up to one year to determine
whether transmission occurred, and, if the
source person was HIV infected, give the
exposed person the control measures
listed in Subparagraphs (l)(a) through (c)
of this Rule. The attending physician of
the exposed person shall instruct the ex-
posed person regarding the necessity for
protecting confidentiality.

(b) When the source person is unknown, the
attending physician of the exposed person
shall inform the exposed person of the risk
of transmission and offer testing for HIV
infection as soon as possible after expo-
sure and at reasonable intervals up to one
year to determine whether transmission
occurred.

(c) A health care facility may release the name
of the attending physician of a source
person upon request of the attending
physician of an exposed person.

(5) The attending physician shall notify the
local health director when the physician, in
good faith, has reasonable cause to suspect
a patient infected with HIV is not following
or cannot follow control measures and is
thereby causing a significant risk of trans-
mission. Any other person may notify the
local health director when the person, in
good faith, has reasonable cause to suspect
a person infected with HIV is not following
control measures and is thereby causing a
significant risk of transmission.

(6) When the local health director is notified
pursuant to Paragraph (5) of this Rule, of a
person who is mentally ill or mentally re-
tarded, the local health director shall confer
with the attending mental health physician
or appropriate mental health authority and
the physician who notified the local health
director to develop an appropriate plan to
prevent transmission.

(7) The Director of Health Services of the
North Carolina Department of Correction
and the prison facility administrator shall be
notified when any person confined in a state
prison is determined to be infected with
HIV. If the prison facility administrator, in
consultation with the Director of Health
Services, determines that a confined HIV
infected person is not following or cannot

7:7 NORTH CAROLINA REGISTER July I, 1992

696

PROPOSED RULES

follow prescribed control measures, thereby
presenting a significant risk of HIV trans-
mission, the administrator and the Director
shall develop and implement jointly a plan
to prevent transmission, including making
appropriate recommendations to the unit
housing classification committee.

(8) The local health director shall ensure that
the health plan for local jails include educa-
tion of jail staff and prisoners about HIV,
how it is transmitted, and how to avoid ac-
quiring or transmitting this infection.

£9) H e alth safe workers with HIV infection
who havo secondary infections e* open s4a»
lesions which would place patients at- ftsk-
shall set- provid e direct patient care. Oth
erwise, these control m e asur e s de set- re-

I- -i l l i »■ fc «-. h . - t *-* ,~*4 | j-t r-\ ^ ^^i T * ~- ■ *• \ ] i I t \ ~\' j ■ ■ . * ^^X r ^ * r .. . \ T > l

CrTTTT^ It .'I i IvTil'F!..' 11 1 1 1 IV TTTTTTpTtirT' CT I ' V 1 OCT !I"

with HIV infection.

(9) (40) Local health departments shall provide
testing for HIV infection with individual pre-
and post-test counseling at no charge to the
patient. Third party payors may only be
billed for HIV counseling and testing when
such services are provided as a part of family
planning and maternal and child health ser-
vices. By August 1, 1991, the State Health
Director shall designate a minimum of 16
local health departments to provide anony-
mous testing. Beginning September 1, 1991,
only cases of confirmed HIV infection iden-
tified by anonymous tests conducted at local
health departments designated as anony-
mous testing sites pursuant to this Subpara-
graph shall be reported in accordance with
15A NCAC 19A .0102(a)(3). All other
cases of confirmed HIV infection shall be
reported in accordance with 15A NCAC
19A .0102(a)(1) and (2). Effective Septem-
ber 1, 1994, anonymous testing shall be dis-
continued and all cases of confirmed HIV
infection shall be reported in accordance
with 15A NCAC 19A .0102(a)(1) and (2).

( 10) (44) Appropriate counseling for HIV test-
ing shall include individualized pre- and
post-test counseling which provides risk as-
sessment, risk reduction guidelines, appro-
priate referrals for medical and psychosocial
services, and, when the person tested is de-
termined to be infected with HIV, control
measures.

(11) (44* A person charged with an offense that
involves nonconsensual vaginal, anal, or oral
intercourse, or that involves vaginal, anal,
or oral intercourse with a child 12 years old
or less shall be tested for HIV infection if:

(a) probable cause has been found or an
indictment has been issued;

(b)

(c)

the victim notifies the local or state health
director and requests information con-
cerning the HIV status of the defendant;
and

the local or state health director determines
that the alleged sexual contact involved in
the offense would pose a significant risk
of transmission of HIV if the defendant
were HIV infected. If in custody of the
Department of Correction, the person
shall be tested by the Department of
Correction and if not in custody, the per-
son shall be tested by the local health de-
partment. The Department of Correction
shall inform the local health director of all
such test results. The local health director
shall inform the victim of the results of the
test, counsel the victim appropriately, and
instruct the victim regarding the necessity
for protecting confidentiality.

( 12) (44) A local health department or the De-
partment may release information regarding
an infected person pursuant to G.S.
130A- 143(3) only when the local health de-
partment or the Department has provided
direct medical care to the infected person
and refers the person to or consults with the
health care provider to whom the informa-
tion is released.

(13) (44) Notwithstanding Rule .0201(d) of this
Section, a local or state health director may
require, as a part of an isolation order issued
in accordance with G.S. 130A-145, compli-
ance with a plan to assist the individual to
comply with control measures. The plan
shall be designed to meet the specific needs
of the individual and may include one or
more of the following available and appro-
priate services:

(a) substance abuse counseling and treatment;
mental health counseling and treatment;
and

education and counseling sessions about
HIV, HIV transmission, and behavior
change required to prevent transmission.

( 14) (444 The Division of Epidemiology shall
conduct a partner notification program to
assist in the notification and counseling of
partners of HIV infected persons. All part-
ner identifying information obtained as a
part of the partner notification program shall
be destroyed within two years.

Statutory Authority G.S. 130A-133; J30A-/35;
130A-144; J30A-/45; 130A-148(h).

(b)
(c)

.0206 INFECTION CONTROL
CARE SETTINGS

HEALTH

7:7 NORTH CAROLINA REGISTER July I, 1992

PROPOSED RULES

(a) The following definitions shall apply
throughout this Rule:

(1) "Health care organization" means hospi-
tal; clinic; physician, dentist, podiatrist, or
chiropractic office; home health agency;
nursing home; local health department;
mental health agency; hospice;
ambulatory surgical center; urgent care
center; emergency room; or any other
health care organization that provides
clinical care.

(2) "Invasive procedure" means entry into
tissues, cavities, or organs or repair of
traumatic injuries. The term includes but
is not limited to the use of needles to
puncture skin, vaginal and cesarean deliv-
eries, surgery, and dental procedures dur-
ing which bleeding occurs or the potential
for bleeding exists.

(b) Health care workers, emergency responders,
and funeral service personnel shall follow blood
and body fluid precautions with all patients.

(c) Health care workers who have open skin
leasions which would place patients at risk for
transmission of HIV or HBV if the health care
worker were infected or who have infections sec-
ondary to HIV infection that pose a risk to pa-
tients shall not provide direct patient care so long
as the conditions persist.

(d) All equipment used to puncture skin in
medical or other settings must be disposed of in
accordance with 15A NCAC 13B after use or
sterilized prior to reuse.

(e) In order to prevent transmission of HIV
and hepatitis B from health care workers to pa-
tients, each health care organization that per-

forms invasive procedures shall implement a
written infection control policy by July J^ 1993.
The health care organization shall ensure that
health care workers in its employ are trained in
the principles of infection control and the prac-
tices required by the policy; require and monitor
compliance with the policy; and update the pol-
icy as needed to prevent transmission of HIV and
hepatitis B from health care workers to patients.
The health care organization shall designate a
staff member to direct these activities. By Janu-
ary l^ 1994, the designated staff member in each
health care organization shall have successfully
completed a course in infection control approved
by the Department. The course shall address:

( 1) Epidemiologic principles of infectious dis-
ease:

(2) Principles and practice of asepsis;

(3) Sterlization, disinfection, and sanitation;

(4) Universal blood and body fluid prec-
autions;

(5) Engineering controls to reduce the risk of
sharp injuries;

(6) Disposal of sharps; and

(7) Techniques which reduce the risk of sharp
injuries to health care workers.

(f) The infection control policy required by this
Rule shall address the following components that
are necessary to prevent transmission of HIV and
hepatitis B from infected health care workers to
patients:

( I) Sterilization and disinfection, including a
schedule for maintenance and
microbiologic monitoring of equipment;
the policy shall require documentation of
maintenance and monitoring;
Sanitation of rooms and equipment, in-
cluding cleaning procedures, agents, and

ill

(21
iil

schedules;

Accessibility of infection control devices
and supplies;

Procedures to be followed in implement-
jng 15A NCAC 19A .0202(4) and
.0203(b)(3) when a health care provider
or a patient has an exposure to blood or
other body fluids of another person in a
manner that poses a significant nsk of
transmission of HIV or hepatitis B.

Statutory Authority G.S. BOA- 144; BOA- 145.

.0207 HIV AND HEPATITIS B INFECTED
HEALTH CARE WORKERS

(a) The following definitions shall apply
throughout this Rule:

"Surgical invasive procedure" means sur-
gery performed using general, regional, or
local anesthesia. The term does not in-
clude injections, placement of central or
peripheral lines, and endoscopic proce-
dures that do not require incisions.
"Dental invasive procedure" means any
dental procedure during which bleeding
occurs or the potential for bleeding exists,
(b) All health care workers who perform sur-
gical or dental invasive procedures or vaginal de-
liveries and who know themselves to be infected
with HIV or hepatitis B shall notify the State
Health Director. Health care workers who assist
in these procedures in a manner that may result
in exposure of patients to their blood and who
know themselves to be infected with HIV or
hepatitis B shall also notify the State Health Di-
rector. The notification shall be made in writing
to the Chief, Communicable Disease Control
Section, P.O. Box 276S7, Raleigh. N.C.
27611-7687.

7:7 NORTH CAROLINA REGISTER July I, 1992

69 S

PROPOSED RULES

and the risk of transmission to patients. The in-
vestigation may include review of pertinent med-
ical and work records and consultation with
health care professionals who may have infor-
mation necessary' to evaluate the clinicaJ condi-

tion or practice of the infected health care
worker. The State Health Director shall protect
the confidentiality of the infected health care
worker and may disclose the worker's infection
status only when necessary to obtain vital mfor-
mation.

(d) If the State Health Director determines that
there may be a significant risk of transmission of
HIV or hepatitis B to patients, the State Health
Director shall appoint an expert panel to evaluate
the risk of transmission to patients, and review
the practice, skills, and clinical condition of the
infected health care worker, as well as the nature
of invasive procedures performed and techniques
used. Pach expert panel shall include an infec-
tious disease specialist, and infection control ex-
pert, a person who practices the same specialty
as the infected health care worker and, if the

health care worker is a licensed professional, a
member of the appropriate licensure board. The
panel may include other experts.

(e) The expert panel shall review information
collected bv the State Health Director and may
request that the State Health Director obtain ad-
ditional information as needed. The State Health
Director shall not reveal to the panel the identity
of the infected health care worker. The panel
shall make recommendations to the State Health
Director that address the following:

(11

[2J

(3)

Restrictions that are necessary to prevent
transmission from the infected health care
worker to patients;

Identification of patients that have been
exposed to a significant risk of trans-
mission of HIV or hepatitis B; and
Periodic review of the clinical condition
and practice of the infected health care
worker,
(f) If. prior to receipt of the recommendations
of the expert panel, the State Health Director
determines that immediate practice restrictions
are necessary to prevent an imminent threat to
the public health, the State Health Director shall
issue an isolation order pursuant to G.S.
130A-145. The isolation order shall require ces-
sation or modification of some or all surgical or
dental invasive procedures or vaginal deliveries to
the extent necessary to prevent an imminent
threat to the public health. This isolation order
shall remain in effect until an isolation order is
issued pursuant to Paragraph (g) of this Rule or
until the State Health Director determines the

imminent threat to the public health no longer
exists.

(g) After consideration of the recommendations
of the expert panel, the State Health Director
shall issue an isolation order pursuant to G.S.
130A-145. The isolation order shall require any
health care worker who is allowed to continue
performing surgical or dental invasive procedures
or vaginal deliveries to, within a time period
specified by the State Health Director, success-
fully complete a course in infection control pro-
cedures approved by the Department of
Environment. Health, and Natural Resources,
Communicable Disease Control Section, in ac-
cordance with 15A NCAC 19A .0206(g). The
isolation order shall require practice restrictions,
such as cessation or modification of some or all
surgical or dental invasive procedures or vaginal
deliveries, to the extent necessary to prevent a
significant risk of transmission of HI\" or
hepatitis B to patients. The isolation order shall
prohibit the performance of procedures that can-
not be modified to avoid a significant risk of
r^r^T transmission. If the State Health Director deter-
mines that there has been a significant risk of

transmission of HIV or hepatitis B to a patient,
the State Health Director shall notify the patient
or require in the isolation order that the health
care worker notify the patient.

(h) The State Health Director shall request the
assistance of one or more health care profes-
sionals to obtain information needed to period-
ically review the clinical condition and practice
of the infected health care worker who performs
or assists in surgical or dental invasive procedures
or vaginal deliveries.

(i) An infected health care worker who has
been evaluated by the State Health Director shall
notify the State Health Director prior to a change
in practice involving surgical or dental invasive
procedures or vaginal deliveries. The infected
health care worker shall not make the proposed
change without approval from the State Health
Director. If the State Health Director makes a
determination in accordance with Paragraphs (c)
and (d) of this Rule that there is a significant risk
of transmission of HIV or hepatitis B to patients,
the State Health Director shall appoint an expert
panel. Otherwise, the State Health Director -hall
notify- the health care worker that he or she may
make the proposed change in practice.

(j) If practice restrictions are imposed on a li-
censed health care worker, a copy of the isolation
order shall be provided to the appropriate
licensure board. The State Health Director shall
report violations of the isolation order to the ap-
propriate licensure board. The licensure board
shall report to the State Health Director anv in-

699

7:7 NORTH CAROLINA REGISTER July I 1992

PROPOSED RULES

formation about the infected health care worker (c) The officer who is scheduled to conduct the

that may be relevant to the risk of transmission
of HIV or hepatitis B to patients.

Statutory Authority G.S. 130A-144; 130 A- 145.

TITLE 21 - OCCUPATIONAL LICENSING
BOARDS

iV otice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Board of
Electrolysis Examiners intends to adopt rule(s)
cited as 21 NCAC 19 .0102.

1 he proposed effective date of this action is Oc-
tober 1, 1992.

1 he public hearing will be conducted at 10:00
a.m. on July 20, 1992 at the Office of the North
Carolina Real Estate Commission, 1313 Navaho
Drive, Raleigh, NC 27609.

lXeason for Proposed Action: It is necessary to
inform the public of the Board's requirements for
the calling, holding, and conducting of meetings.

C_^ omment Procedures: The record of hearing
will be open for receipt of written comments from
July 1, 1992 through July 31, 1992. Written
comments may be either submitted at the hearing
or delivered to the Board at its mailing address
(c/o Patricia Holland, 205 Westview Place, High
Point, North Carolina 27260). Anyone wishing
to speak at the hearing should notify Charlene
Taylor in writing at the Board's mailing address
and requests should be received no later than July
19, 1992. Anyone whose written request to speak
is not received by July 19, 1992, may not be able
to speak.

CHAPTER 19 - BOARD OF ELECTROLYSIS
EXAMINERS

SECTION .0100 - GENERAL PROVISIONS

.0102 MEETINGS

(a) The Board shall hold two regular meetings
each year in the months of January and July on
call of the Chairman, or, if the Chairman is una-
ble for anv reason to call the meeting, the Vice-
chairman or the Treasurer in that order. Special
meetings of the Board may be called at any time
by the Chairman or any two board members.

(b) The Chairman shall conduct aH meetings;

meeting shall prepare an agenda for the meeting,
(d) The Board shall set aside time at its regular
meetings to hear members of the public who
wish to speak to the Board. If time permits, the
Board may also allow members of the public to
speak at special meetings. Anyone who wishes
to speak concerning an item on the agenda shall
notify the presiding officer before the meeting is
called to order. Anyone who wishes to speak
concerning an item that is not otherwise sched-
uled to be on the agenda shall, at least 72 hours
before the meeting, contact the scheduled presid-
ing officer to request that the item be included.
The request must include the identity of the
maker and the nature of the item and must be in
writing unless the maker can show to the satis-
faction of the scheduled presiding officer that it
was not reasonably possible to provide a written
request. Anyone who speaks to the Board at a
regular meeting under the provisions of this Par-
agraph shall be allowed a time period of five
minutes, except that the presiding officer may
further limit time if several persons have asked to
speak. The presiding officer may limit time as
needed at special meetings. At any meeting, the
presiding officer may require groups to appoint
a representative to speak for members of the
group on an issue. Although members of the
Board may ask specific questions of those
speaking, the time allotted pursuant to this Par-
agraph shall not be used either to debate the rel-
ative merits of any proposal or to examine
members of the Board.

Statutory Authority G.S. 88A-5.

in the absence of the Chairman, the Vice-

chairman or the Treasurer in that order shall
conduct the meeting.

******************

iV otice is hereby given in accordance with G.S.
150B-2I.2 that the North Carolina Board of
Nursing intends to amend rule(s) cited as 21
NCAC 36 .0/09, .0223; and adopt rule(s) cited
as 21 NCAC 36 .0325.

1 he proposed effective date of this action is Oc-
tober 1. 1992.

1 he public hearing will be conducted at 2:00
p.m. on July 31, 1992 at the North Carolina Board
of Nursing Office, 3724 National Drive, Suite 201 ,
Raleigh. NC 27612.

lXeason for Proposed Actions: These Rules are
being proposed for adoption or amendment to

7:7 NORTH CAROLINA REGISTER July I, 1992

700

PROPOSED RULES

clarify, strengthen and incorporate adopted poli-
cies.

omtnent Procedures: Any person wishing to
present oral testimony relevant to proposed rules
may register at the door before the hearing begins
and present hearing officer with a written copy of
the testimony. Written statements may be sub-
mitted by August 1 , 1992 to the North Carolina
Board of Nursing, P.O. Box 2129, Raleigh, NC
27602.

CHAPTER 36 - BOARD OF NURSING

SECTION .0100 - GENERAL PROVISIONS

.0109 SELECTION AND QUALIFICATIONS
OF NURSE MEMBERS

(a) Vacancies in nurse member positions on the
Board that are scheduled to occur during the next
year shall be announced in the December issue
of the North Carolina Board of Nursing "Bulle-
tin", which shall be mailed to the address on re-
cord for each North Carolina currently licensed
nurse on December 1. The "Bulletin" shall in-
clude a petition form for nominating a nurse to
the Board and information on filing the petition
with the Board.

(b) Each petition shall be checked with the re-
cords of the Board to validate that the nominee
and each petitioner hold a current North
Carolina license to practice nursing. If the
nominee is found to be not currently licensed, the
petition shall be declared invalid. If any
petitioners are found to be not currently licensed
and this finding decreases the number of
petitioners to less than ten, the petition shall be
declared invalid.

(c) On a form provided by the Board, each
nominee shall indicate the category- for which
nominee is seeking election, shall attest to meet-
ing the qualifications specified in G.S.
90- 171.21(d) and shall provide written permission
to be listed on the ballot. The form must be re-
turned on or before April 15.

(d) The majority of employment income of
registered nurse members of the Board, must be
earned by holding positions of primary responsi-
bility as specified in G.S. 90- 171.21(d). The fol-
lowing definitions apply in determining
qualifications for registered nurse categories of
membership:

(1) Nurse Educator includes any nurse who
teaches in or directs a basic or graduate
nursing program; or who teaches in or di-
rects a continuing education or staff de-
velopment program for nurses.

(2) Hospital is defined as any facility which
has an organized medical staff and which
is designed, used, and primarily operated
to provide health care, diagnostic and
therapeutic services, and continuous
nursing to inpatients.

(3) Hospital Nursing Service Director » in-
cludes any nurse wbe whose primary po-
sition in a hospital setting requires
licensure as a Registered Nurse and whose
pnmar\' responsibility is the chief execu-
tive officer for the planning, delivers' and
evaluation of nursing oorvioo. care.

(4) Employed by a hoopital Hospital nurse in-

cludes any nurse omployod by whose pri-
mary position in a hospital setting
requires licensure as a Registered Nurse,
and whose primary responsibility include
the administration, supervision or plan-
ning delivery and evaluation of nursing
care, or nursing staff development.

(5) Employed by a physician Physician's office

nurse includes any nurse e mployed by
whose primary position in a phyoician
physician's or group of physicians licensed
te- practice m e dicine » North Carolina
a«4 e ngaged » private practice, physi-
cians' office, requires licensure as a Regis-
tered Nurse and whose primary
responsibilities include the administration,
supervision or planning, delivery and
evaluation of nursing care, or nursing staff
development.

(6) Employ e d by skilled ef intermediate eaf»

facility Long Term Care Nurse includes
any nurse employed by a long term whose
primary position in a nursing facility
(skilled or intermediate) as defined in 10
NCAC 3C .1902(23) and K) NCAC 3H
.0108(22), requires licensure as a Regis-
tered Nurse, and whose primary responsi-
bility-, include administration, sjjj^ervision
or planning, delivery and evaluation of
nursing care or nursing staff development.

(7) Registered nurse approved to perform
medical acts includes any nurse who is U^
censed as a Registered Nurse and is ap-
proved for practice in North Carolina as
a Nurse Practitioner or Certified Nurse
Midwife.

(8) Community health nurse includes any
nurse who functions a* a genorulist es
specialist m areas including, btrt- ft©* foft-
itt*4 tor public h e alth, student h e alth, m-
cupational health w community mental
health. whose prim an' position in a
public health or community health setting
(e.g. student health center, occupational

701

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

health center, home care, mental health
clinic, correctional institution, health de-
partment, community health center or
clinic) requires licensure as a Registered
Nurse and whose primary responsibilities
include administration, supervision or
planning, delivery and evaluation of nurs-
ing care or nursing staff development.

(e) The majority of the income of Licensed
Practical Nurse members of the Board must be
earned by holding positions that require licensure
as a Licensed Practical Nurse and whose primary
responsibilities include participation in the as-
sessment, planning, delivery and evaluation of
nursing care,

(f) l^f The term "nursing practice" when used
in determining qualifications for registered or
practical nurse categories of membership, means
any position for which the holder of the position
is required to hold a current license to practice
nursing.

(g) (f) A nominee shall be listed in only one
category on the ballot.

(h) fg} If there is no nomination in one of the
registered nurse categories, all registered nurses
who have been duly nominated and qualified
shall be eligible for an at -large registered nurse
position. A plurality of votes for the registered
nurse not elected to one of the specified catego-
ries shall elect that registered nurse to the at-large
position.

(i) fk} Separate ballots shall be prepared for
election of registered nurse nominees and for
election of licensed practical nurse nominees.
Nominees shall be listed in random order on the
ballot for licensed practical nurse nominees and
within the categories for registered nurse nomi-
nees. Ballots shall be accompanied by bi-
ographical data on nominees and a passport-type
photograph. Ballots shall prescribe the method
of voting.

(j) (4) Any nominee may withdraw her his name
at any time by written notice prior to the date
and hour fixed by the Board as the latest time for
return for ballots. Such nominee shall be elimi-
nated from the contest and any votes cast for that
nominee shall be disregarded.

(k) {$ On or about June 15, the appropriate
ballot and a return official envelope shall be
mailed to the address on record for each currently
licensed nurse on that date, together with a notice
designating the latest day and hour for return of
ballot which shall not be earlier than the tenth
day following the mailing.

(1) (k-) The Board of Nursing may contract with
a computer or other service for receipt of envel-
opes with ballots and the counting of ballots.

(m) (1) The counting of ballots shall be con-
ducted as follows:

(1) The certificate number and name of the
voter shall be entered on the perforated
section of the ballot sheet.

(2) The certificate number and name of the
voter shall be matched with the registra-
tion list. In the event that there is not a
match, the entire ballot sheet shall be set
aside for inspection, validation, or invali-
dation by the Board of Nursing.

(3) Those ballots which are not set aside shall
have the perforated section completely
separated from the ballot portion of the
sheet.

(4) Only official ballots shall be counted.

(5) A ballot marked for more names than
there are positions to be filled shall not
be counted for that category but shall be
counted for all other categories voted cor-
rectly.

(6) If for any reason it is impossible to deter-
mine a voter's choice for a category of
nurse, that ballot shall not be counted for
that category, but shall be counted for all
other categories clearly indicated.

(7) Ballots identified in (2), (5) and (6) of this
Paragraph shall be set aside for inspection
and determination by the Board of Nurs-
ing.

(n) f»} A plurality vote shall elect. If more
than one person is to be elected in a category, the
plurality vote shall be in descending order until
the required number has been elected. In any
election, if there is a tie vote between nominees,
the tie shall be resolved by a draw from the
names of nominees who have tied.

(o) fn4 The results of an election shall be re-
corded in the minutes of the next regular meeting
of the Board of Nursing following the election
and shall include at least the following:

(1) the number of nurses eligible to vote,

(2) the number of return ballots set aside and
the disposition of same,

(3) the number of ballots cast,

(4) the number of ballots declared invalid, and

(5) the number of votes cast for each person
on the ballot.

(p) f*4 The results of the election shall be for-
warded to the Governor and the Governor shall
commission those elected to the Board of Nurs-
ing.

(q) ff4 All petitions to nominate a nurse, signed
consents to appear on the ballot, verifications of
qualifications, perforated sections of the ballot
sheets containing the certificate number and
name of the voter, and the ballots shall be pre-

7:7 NORTH CAROLINA REGISTER July I, 1992

702

PROPOSED RULES

served for a period of three months following the
close of an election.

Statutory Authority G.S. 90-171.21;

90-171. 23(b).

SECTION .0200 - LICENSURE

.0223 CONTINUING EDUCATION PROGRAMS

(a) Definitions.

(1) Continuing education in nursing is a non
dogroo oriontod, planned, organized learn-
ing experience taken after completion of
a basic nursing program I» addition, a
courno(o) ef eomponont(fi) ef- a- couroo(o)
within a» academic dogroo oriontod pro
gram which prepares a nurse to perform
advanced skills. Types of learning expe-
riences that may be considered continuing
education as defined in Paragraph Sub-
paragraph (a)(3) of this Rule include:

(A) a non-degree oriented program;

(B) a course(s) or component(s) of a
course(s) within an academic degree-
oriented program ; or

(C) an advanced academic degree-granting
program which prepares the registered
nurse for advanced practice as a clinical
nurse specialist, nurse anesthetist, nurse
midwife or nurse practitioner.

(2) Programs offering an educational experi-
ence designed to enhance the practice of
nursing are those which include one or
more of the following:

(A) enrichment of knowledge;

(B) development or change of attitudes; or

(3) Programs are considered to teach nurses
advanced skills when:

(A) the skill taught is not generally included
in the basic educational preparation of the
nurse; and

(B) the period of instruction is sufficient to
assess or provide necessary knowledge
from the physical, biological, behavioral
and social sciences, and includes super-
vised clinical practice to ensure that the
nurse is able to practice the skill safely and
properly.

(4) Student status may be granted to an indi-
vidual who does not hold a North
Carolina nursing license but who partic-
ipates in a clinical component of a con-
tinuing education programs in North
Carolina when:

(A) the individual possesses a current un-
encumbered license to practice nursmg in
a jurisdiction other than North Carolina;

(B) the course offering meets one of the
following criteria:

(i) is part of an academic degree-granting
nursing program which has approval in
a jurisdiction other than North
Carolina or national accreditation; or

(ii) is offered through an in-state aca-
demic institution which has Board ap-
proval for basic nursing education
program(s) or national accreditation for
advanced nursing education program(s);
or

(iii) is approved by the Board as a con-
tinuing education offering, thereby
meeting the criteria as defined in Para-
graph (b) of this Rule.

(C) the individual receives supervision by a
qualified preceptor or member of the fac-
ulty who has a valid license to practice as
a registered nurse in North Carolina;

(D) the course of instruction has a specified
period of time not exceeding twelve
months;

(E) the individual is not employed in nurs-
ing practice in North Carolina during
participation in the program; and

(F) the Board has been given advance no-
tice of the name of each student, the ju-
risdiction in which the student is licensed,
the license number, and the expiration
date.

(b) Criteria for voluntary approval of continu-
ing education programs in nursing.

(1) Planning the educational program shall
include:

(A) definition of learner population; for
example, registered nurse, licensed practi-
cal nurse, or both;

(B) identification of characteristics of the
learner; for example, clinical area of prac-
tice, place of employment, and position;
and

(C) assessment of needs of the learner; for
example, specific requests from individ-
uals or employers, pre-tests, or audits of
patient records.

(2) Objectives shall:

(A) be measurable and stated in behavioral
terms;

(B) reflect the needs of the learners;

(D) serve as criteria for the selection of
content, learning experiences and evalu-
ation of achievement;

(E) be achievable within the time allotted;
and

(F) be applicable to nursing.

(3) Content shall:

703

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

(A) relate to objectives;

(B) reflect input by qualified faculty; and

(4) Teaching methodologies shall:

(A) utilize pertinent educational principles;

(B) provide adequate time for each learning
activity; and

(5) Resources shall include:

(A) faculty who have knowledge and expe-
rience necessary to assist the learner to
meet the program objectives and are in
sufficient number not to exceed a faculty-
learner ratio in a clinical practicum of
1:10. If higher ratios are desired, sufficient
justification must be provided; and

(B) physical facilities which ensure that ad-
equate and appropriate equipment and
space are available and appropriate clin-
ical resources are available.

(6) Evaluation must be conducted:

(A) by the provider to assess the partic-
ipant's achievement of program objectives
and content and will be documented; and

(B) by the learner in order to assess the
program and resources.

(7) Records shall be maintained by the pro-
vider for a period of three years and shall
include a summary of program evalu-
ations, roster of participants, and course
outline. The provider shall award a cer-
tificate to each participant who success-
fully completes the program.

(1) The provider shall:

(A) make application on forms provided
by the Board no less than 60 days prior
to the proposed enrollment date;

(B) present written documentation as spec-
ified in (b)(1) through (b)(7) of this Rule;
and

(C) notify the Board of any significant
changes relative to (b)(1) through (b)(7)
of this Rule; for example, changes in fac-
ulty or total program hours.

(2) Approval is granted for a two year period.
Any request to offer an approved program
by anyone other than the original provider
must be made to the North Carolina
Board of Nursing.

(3) If a course is not approved, the provider
may appeal in writing for reconsideration
within 30 days after notification of the
disapproval. If the course is not approved
upon reconsideration, the provider may

request a hearing at the next regularly
scheduled meeting of the Board.

(4) Site visits may be made by the Board as
deemed appropriate to determine compli-
ance with the criteria as specified in Para-
graph (b) of this Rule.

(5) The Board shall withdraw approval from
a provider if the provider does not main-
tain the quality of the offering to the sat-
isfaction of the Board or if there is
misrepresentation of facts within the ap-
plication for approval.

(6) Approval of continuing education pro-
grams will be included in published re-
ports of Board actions. A list of approved
programs will be maintained in the
Board's file.

Statutory
90-171.42.

Authority G.S. 90-171 .23(b);

SECTION .0300 - APPROVAL OF NURSING
PROGRAMS

.0325 REMOVAL OF APPROVAL

(a) I "pon notification of practice(s) inconsistent
with nursing laws and standards in board ap-
proved facilities, the Board of Nursing shall con-
duct an investigation to substantiate
complaint(s).

(b) Once a complaint is substantiated, the
Board shall:

notify the facility of the violations in

ill

121
[31
(41

wnting;

specify time frame for correction of
violation(s);

specify actions necessary by the facility to
verify compliance;

provide written notice to all appropriate
agencies and approved programs utilizing
the facility for nurse or unlicensed per-
sonnel educational experiences of the
non-compliance; and
(5) conduct a survey with a minimum of two
consultants, one of whom shall be an ed-
ucation consultant, to verify nursing is
consistent with law and standards.

(c) If findings at the time of the survey are that
nursing care is consistent with law and standards,
the approval status of the facility shall remain
unchanged. I he t.icihty and all agencies and
programs notified in accordance with Subpara-
graph (b)(4) of this Rule, shall receive written
notice that the facility is in compliance with law
and standards.

(d) If findings following the survey are that
nursing care is in continuing non-compliance
with law and standards, the Executive Director

7:7 NORTH CAROLINA REGISTER July 1, 1992

704

PROPOSED RULES

shall summarily suspend approval status for stu-
dent u so The facility shall be notified in writing
of the findings and all appropriate agencies and
programs notified in accordance with Subpara-
graph (b)(4) of this Rule, shall receive written
notice ot t_he facility's non-compliance with law
and standards and loss of approval.

(e) Facilities desiring re-approval for student
use shall:

( 1) provide written documentation or present
substantial evidence to demonstrate com-
pliance with law and standards; and

(2) request a survey revisit by the Board of
Nursing.

Statutory Authority G.S. 90-17 1 .23(b);
90-17/38; 90-171.39; 90-171.40; 90-17 1 .42(b).

******************

either a valid license under this Article or a Cer-
tificate of Clinical Competence of the American
Speech- Language- Hearing Association, in the
area for which supervised credit is sought, who
must be physically present in the same facility
and accessible to the student during the per-
formance of the practicum. As a nainimum
standard of supervision, clinical supervisors of
students in practicum must directly observe at
least 50 percent of each evaluation session, in-
cluding screening and identification activities, and
at least 25 percent of each student's total contact
time with each client.

Statutory Authority G.S. 90-294(c)(2);
90-304(3); 150B-40(b).

TITLE 25 - OFFICE OF STATE
PERSONNEL

Ivotice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Board of Ex-
aminers for Speech and Language Pathologists
and Audiologists intends to adopt rule( s) cited as
21 NCAC 64 .0208 with changes from the pro-
posed text noticed in the Register, Volume 6, Is-
sue 23, page 1777.

1 he public hearing will be conducted at 11:00
a.m. on July 31, 1992 at 400 W. Main St., Suite
608, Durham, NC 27702.

1 he proposed effective date of this action is Oc-
tober 1. 1992.

JKeason for Proposed Action: To adopt new rule
interpreting required supervision for student
practicum to insure adequacy of supervision.

(_ omment Procedures: Persons may present
statements either orally or in writing at the hearing
or in writing within five days prior to the hearing
to the Board of Examiners for Speech and Lan-
guage Pathologists, P.O. Box 5545, Greensboro,
North Carolina 27435-0545.

CHAPTER 64 - BOARD OF EXAMINERS OF

SPEECH AND LANGUAGE PATHOLOGISTS

AND AUDIOLOGISTS

SECTION .0200 - INTERPRETATIVE RULES

.0208 SUPERVISION OF CLINICAL
PRACTICUM

The Board interprets the word "supervision"
used in (i.S. 90-295(3) to require that the super-
vision must be performed bv a person who holds

Ivotice is hereby given in accordance with G.S.
150B-21.2 that the Office of State Personnel/ State
Personnel Commission intends to amend rules
cited as 25 NCAC JC .0501 - .0504; IE .0804,
.0806 - .0807, .0812, .08/5, .0817 - .0819; adopt
25 NCAC IE .0820; II .2407 - .24/1 and repeal
25 NCAC IE .0810 - .0811, .0813.

1 he proposed effective date of this action is Oc-
tober 1, 1992.

1 he public hearing will be conducted at 9:00
a.m. on August 4, 1992 at the State Personnel
Development Center, 101 W. Peace Street,
Raleigh. North Carolina.

eason for Proposed Action:

25 NCAC 1C .0501 - .0504 - These rules are pro-
posed to be amended to define what a bona fide
meal period is (Fair Labor Standards Act defi-
nition) and to clarify what constitutes a meal pe-
riod. A provision is also included which
recognizes that part-time and some shift employ-
ees do not work the normal daily schedule and
therefore allows the agency to determine appro-
priate schedules for them.

25 NCAC IE .0810, .0811, .0813 - These rules are
proposed to be repealed in order to adopt and
amend rules to conform to current practices.

25 NCAC IE .0804, .0806 - .0807, .0812, .0815, .0817
- .08 1 9 - These rules are proposed to be amended
to offer guidance and clarification to state agen-
cies and universities in implementing the military
leave policies.

705

7: 7 NOR TH CAR OLINA REGIS TER July 1, 1 992

PROPOSED RULES

25 NCAC IE .0820 - This rule is proposed to be
adopted to clarify the military leave provisions
which are applicable to the State Defense Militia
and to offer guidance to stale agencies and uni-
versities in implementing these provisions.

25 NCAC II .2407 - .241 1 - These proposed rules
are to replace out-of-date rules in the process of
being repealed.

, omment Procedures: Interested persons may
present statements either orally or in writing at the
Public Hearing or in writing prior to the hearing
by mail addressed to: Barbara A . Coward, Office
of State Personnel, 1 16 W. Jones Street, Raleigh,
N.C. 27603.

CHAPTER 1 - OFFICE OF STATE PERSONNEL

SUBCHAPTER IC - PERSONNEL
ADMINISTRATION

SECTION .0500 - WORK SCHEDULE

.0501 STANDARD WORKWEEK

The standard workweek for employees subject
to the Personnel Act is 40 hours per week. The
normal daily work schedule is five days per week,
eight hours a day plus a lunch meal period.
Other schedules apply to part-time employees
and some shift employees; agencies are responsi-
ble for determining the appropriate schedules for
these employees. Because of the nature of the
various state activities, some positions require a
workweek ef moro other than five days. The
normal daily work schedule shall may not apply
to educational, hospital and similar institutions
with schedules geared to round-the-clock service.
unlooo th e y elect to adopt it?

Statutory Authority G.S. 126-4.

.0502 VARIABLE WORK SCHEDULE

U is the policy ef state government that, m
Agencies utilizing the normal daily may choose
to utilize a variable work schedules, schedule that
allows employees be allowed to choose a daily
work schedule and meal period which, subject to
agency necessities, is most compatible with their
personal needs, this ohall be referred te as a
variable) work schedule. Supervisors are respon-
sible for arranging operating procedures that are
consistent with the needs of the agency and the
public it serves, and at the same time can ac-
commodate, as far as possible, the employee's
choice of daily work schedule within the estab-
lished limits. If any adjustments of employee

work schedules are necessary, this should be done
as fairly and equitably as possible.

Statutory Authority G.S. 126-4.

.0503 IMPLEMENTATION

(a) Each new employee shall be given detailed
information about the variable work schedule
and given the opportunity to select the schedule
preferred prior to reporting for work. Work
schedules are to be associated with individuals
and not with position, with the exception that
there may be positions which must be filled on
some predetermined schedule. In these excep-
tional cases, applicants shall be informed of this
predetermined schedule prior to any offer and
acceptance of employment.

(b) The employee and his /her supervisor shall
agree upon the schedule to be followed, consist-
ent with the needs of the agency. The lunch
meal period may be scheduled within the normal
work hours to meet the needs of the employee
and the working unit but may not be used to
shorten the workday. A bona fide meal period
is a span of at least 30 consecutive minutes dur-
ing which an employee is completely relieved of
duty. It is not counted as hours worked. Any
so-called "meal period" of less than 30 consec-
utive minutes must be considered as hours
worked for employees who are non-exempt as
defined by the Fair Labor Standards Act.

(d) Agency administrators shall be responsible
for providing adequate supervision for each work
unit during the hours employees are scheduled to
work. This can be accomplished by sharing or
by delegation of authority of supervisor.

(e^ Throo montho after a work oohodulo has

oovn u.'nn'ii mil ti 1 1 i\_'i \.' jiiuh i_*v cm \j i.'l'ii doiciv in ' 1 1

pvl IUT] UlII 1 1 1 EL, "• I IHJI I L11VI I Ullll'll' T l. I- TO E>I " *- 1 1 1 1 'U

opportunity te chango the choice ef work oched

\l l\rj . TTrtTTTTTTrT^ ED I Vl^I I 1-TVH-^.T H-7 1 1 I '11 H >K1 .'I IUH

be held at l e ast every- twelvo montho.

ff) If a» omployoe needs te- chang e his work
sch e dul e at a time oth e r than during a» "open
selection p e riod" this shall be permit tod if the
supervisor ea» arrange the workload &e that- this
chango is set detrimental te the functioning ef

tii^ unit
I 1 l\J LI I It I .

Statutory Authority G.S. 126-4.

.0504 LIMITATIONS

(a) An employee who arrives later than sched-
uled, may be permitted to make up deficit by
working that much longer » the afternoon at the
end of the workday if this is consistent with the

7:7 NORTH CAROLINA REGISTER July I, 1992

706

PROPOSED RULES

work need of the agency. Otherwise, the
tardiness shall be charged to the appropriate leave
category. Supervisors shall be responsible for
taking appropriate action to correct any abuse
or misuse of this privilege which may include
deductions from employee's pay.

(b) If an employee reports to work early he /she
may, with the supervisor's permission, begin
work at that time and leave at a correspondingly
early hour; m the aftornoon; otherwise, the em-
ployee shall wait in a designated area away from
whor e other omployooo are at- work, the work
station.

(c) If an employee leaves work early without
permission, the time shall be deducted from the
employee's pay or may be charged to the appro-
priate leave account if justified.

(d) An employee may not work later than
scheduled unless the supervisor has approved it
due to workload.

Statutory Authority G.S. J 26-4.

SUBCHAPTER IE - EMPLOYEE BENEFITS

SECTION .0800 - MILITARY LEAVE

.0804 PERIODS OF ENTITLEMENT FOR
ALL RESERVE COMPONENTS

Militar y' l e av e with pay shall be granted to f»U-
tim e e* part timo permanent, trainee an4
probationary omployooo fof 96 working hours
annually (prorat e d fe* part tim e employees) fof
a«y- type el activ e military duty »£ a momhor net
oft extended activ e duty a* d e fin e d i» Rul e .0803
of this Section. Q» rafe occu » jions doe to annual
training (summer camp) being sch e duled »» a
federal fiscal yea* basis at* employeo may be re-
quir e d to att e nd tw-e- periods of training ift ooe
calendar yoar. Pop instanc e , the employee may
be requir e d to att e nd annual training fo* federal
fiscal yeaf 10 SO m March aftd fop f e d e ral fiscal
yea? 1081 m November, Pof this purpos e only,
aft employee shall be granted a» additional %
hours military' leav e (prorated for- part tim e em-
ployees} during the same calendar yeaf as re-
quirod.

(a) Military leave with pay shall be granted to
full-time or part-time permanent, trainee and
probationary employees for u£ to 120 working
hours (prorated for part-time employees) during
the federal fiscal year, beginning October J_ and
ending on September 30, for any type of active
militan duty for members not on extended active
duty.

(b) Regularly scheduled unit assemblies occur-

ring on weekends and referred to as "drills'

Although these periods do not normally require
military" leave, the employing agency is required

to excuse an employee for all regularly scheduled
military training duty. If necessary the employ-
ee's work schedule shall be appropriately rear-
ranged to enable the employee to attend these
assemblies. To determine the dates of these reg-
ularly scheduled unit assemblies, the employing
agency may require the employee to provide a
unit training schedule which lists training dates
for a month or more in advance. Military leave
with pay [from Paragraph (a) of this Rule| or
vacation may be used if "drills" occur on week-
days.

(c) An employee shall be granted necessary
time off when the employee must undergo a re-
quired physical examination relating to member-
ship in a reserve component without charge to
leave.

Statutory Authority G.S. J 26-4; 1 27 A- 1 16.

.0806 PERIODS OF ENTITLEMENT FOR
CIVIL AIR PATROL

(a) While the Civil Air Patrol is not a reserve
component, it is an auxiliary to the U.S. Air
Force. Its members are not subject to obligatory
service. When performing missions or
encampments authorized and requested by the
U.S. Air Force or emergency missions for the
state at the request of the Governor or the Sec-
retary of the Department of Crime Control and
Public Safety, a member of the Civil Air Patrol
is entitled to military leave not to exceed a com-
bined total of % 120 hours (prorated for part-
time employees) in any calendar year unless
otherwise authorized by the Governor. Such
service may be verified by the Secretary of the
Department of Crime Control and Public Safety
upon the request of the employing agency.

(b) Regularly scheduled unit training assem-
blies, usually occurring on weekends are not ac-
ceptable for military leave with pay, however,
employing agencies are encouraged to arrange
work schedules to allow employees to attend this
training.

Statutory Authority G.S. 126-4; I27A-116.

.0807 UNACCEPTABLE PERIODS

Employees shall not be entitled to military leave
with pay for the following periods:

(4-) regularly scheduled tmit assemblies usually
occurring o» weekends a«4 referred to as
"drills"; Although these periods afe unac
ceptable top military leav e with payr me
employing agency is required to excus e a»
employee fof regularly scheduled military
training duty. If necessary the employee's
work schedule shall be appropriately Feaf-

707

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

ranged te enable the omployoo t» attend
thooo aooomblioo. ¥e dotormine the dateo ef
thooo regularly ochodulod Hftit aooomblioo,
the employing agency mey require the efR-
ployoo to- provid e a «*h4- training ochodulo
which list* training dat e s fof a month ef
more ift advanc e . Employing agenci e s are
»et required t» oxcuoe a» omployoo fof mH-
itar/ oon r ico performe d undor the circum
otancoo dofinod m Parts (3}? (3) a«4 (4) ef

(1) (5) duties resulting from disciplinary actions
imposed by military authorities;

(2) £5) for unscheduled or incidental military
activities such as volunteer work at military
facilities (not in duty status), unofficial mili-
tary activities, etc.;

(3) (4) for inactive duty training (drills) per-
formed for the convenience of the member,
such as equivalent training, split unit as-
semblies, make-up drills, etc.

Employing agencies are not required to excuse
an employee for military service performed under
circumstances described in Subparagraphs (1), (2)
and (3) of this Rule.

Statutory Authority G.S. 126-4; 127A-1I6.

.0810 LEAVE WITH PAY: PHYSICAL

EXAMINATION FOR MILITARY SERVICE

Aft omployoo shall be granted necessary timo eff-
whon the employee must undergo a required
physical examination relating te military service.

Statutory Authority G.S. 126-4; 127A-116.

.081 1 MILITARY LEAVE WITH
DIFFERENTIAL PAY

Military leave with differential pay- between
military pay- a»4 regular state payr if military pay-
is the lessor, shall be granted fof aotivo otato duty
fof periods is- e xcess ef 30 consecutive calendar

Statutory Authority G.S. 126-4; I27A-116.

.0812 MILITARY LEAVE WITHOUT PAY:

ATTENDANCE AT SERVICE SCHOOLS

(a) Military' leave without pay shall be granted
for certain periods of active duty or for attend-
ance at service schools. Except for extended ac-
tive duty (covered in Rule .0803 of this Section)
use of all or any portion of an employee's % 120
hours annual military leave (prorated for part-
time employees) with pay or regular vacation
leave may be used in lieu of or in conjunction
with military leave without pay.

(b) Military leave without pay shall be granted
for attendance at service schools when such at-

tendance is mandatory for continued retention in
the military service.

(c) For purposes other than retention, military
leave without pay may be granted employees for
attendance at resident military service schools.
However, when the employee is required by a
reserve component to attend a resident special-
ized military course because the course is not
available by any other means (i.e., correspond-
ence course, USAR school, etc.) military leave
without pay shall be granted. To verify that such
a course is mandatory, the agency may contact
the Department ef Crimo Control et&4 Public
Safety. Office of the Adjutant General, North
Carolina National Guard, Att: Vice Chief of
Staff-State Operations.

Statutory Authority G.S. 126-4; 127 A- 116.

.0813 EXTENDED ANNUAL ACTIVE DUTY

Military' leave without pay- ohall be granted if
additional timo is required fof annual activ e duty
fof training purposes b e yond the allowable; %
worleing hours eaeh yoar. ^Phe employee f»ay

^^L^^^^ ^^^ ' | | , J T ■ ■ \ ■ * > \ 1 \ : -\ t ) L^^^^^^A |^^^^^^^Q t l"fc *"\ r-l Qrt j-\ t-1 1 ."* J"t T ■/">

C^^^CT IV tl^^7 ' WVT.IT rV7H R.TI T V nimvr 1 1 tul I 5^_* tTT rCTfTv

without pay-7

Statutory Authority G.S. 126-4; 127A-116.

.0815 EMPLOYEE RESPONSIBILITY:
LEAVE WITHOUT PAY

The employee shall make available to the
agency head a copy of orders to report for active
duty, shall advise the agency head of the effective
date of leave and the probable date of return,
shall provide the agency head with any requested
information regarding military service, af*4 shall
be responsible for making application for rein-
statement within 90 days from the date of sepa-
ration from service and shall notify the agency
of any decision not to return.

Statutory Authority G.S. 126-4.

.0817 RETENTION AND CONTINUATION
OF BENEFITS

(a) The employee may choose to have accu-
mulated vacation leave paid in a lump sum, may
exhaust this leave, or may retain part or all of
accumulated leave until return to state service;
the maximum accumulation of 240 hours applies
to lump sum payment.

(b) The employee shall retain all accumulated
sick leave and continue to earn time toward sal-
ary increases and aggregate service. Entitlement
is given to full retirement membership service
credit for the period of such active service in the
Armed Forces after being separated or released,

7:7 NORTH CAROLINA REGISTER July I, 1992

708

PROPOSED RULES

or becoming entitled to be separated or released,
from active military service for othor than
honorable conditions. Under this provision,
credit is received for such service upon filing with
the Teachers' and State Employees' Retirement
System a copy of the service record showing
dates of entrance and separation. (In addition,
the retirement membership service credit is
available to employees who return to state em-
ployment within a period of two years after the
earliest discharge date, or any time after discharge
and who have rendered 10 or more years of
membership in the retirement system.) Volun-
tary enlistments following the earliest discharge
are not creditable.

Statutory Authority G.S. 126-4.

.0818 REINSTATEMENT FROM LEAVE

WITHOUT PAY FOR MILITARY SERVICE

(a) Employees on leave without pay who are
separated or discharged from military service un-
der honorable conditions and who apply for
reinstatement within the established time limits
shall be reinstated to the same position or one
of like status, seniority and pay with the same
agency or with another state agency. If, during
military' service, an employee is disabled to the
extent that the duties of the original position
cannot be performed, the employee shall be
reinstated to a position with duties compatible
with the disability.

(b) The employee's salary upon reinstatement
shall be based on the salary rate just prior to
leave plus any general salary increases due while
on leave. In no case will the reinstated employ-
ee's salan' be less than when placed in a military
leave status. The addition ef performance salary
increases may be considered by the agency head.
If the employee was in trainee status at the time
of military leave, the addition of trainee adjust-
ments may be considered, aX the discretion of the
agency head, if it can be determined that the
military experience was directly related to devel-
opment in the area of state work to be per-
formed. Employees who resign without
knowledge of their eligibility for leave without
pay and reinstatement benefits, but who are oth-
erwise eligible for the reinstatement benefits of
this Paragraph, shall be reinstated from military
service the same as if they had applied for and
been granted leave without pay for military ser-
vice. A» employee e» leave without pay who
receives a discharge &f separation und e r condi
bono less than honorable fftay- be considered fop
reinstatement. The decision te r e instate a» efft-
ployee se discharged e* separated shall be the
responsibility ef the agency head.

Statutory Authority G.S. J 26-4.

.0819 RESERVE ENLISTMENT PROGRAM OF

I963(REP-63)

Military leave without pay- shall be granted fof
aotivo 8+rty training upon initial e nlistment m a
reserv e component . This poriod is variable bet
averages about si* months a«4 is somotimos re-
forred te- as il si* months active duty."

The employee may use all or part of his her 120
hours of military leave with pay or regular vaca-
tion leave or a combination of the two in lieu of
military' leave without pay.

Statutory Authority G.S. 126-4; 1 27 A- 116.

.0820 PERIODS OF ENTITLEMENT FOR

MEMBERS OF THE STATE DEFENSE
MILITIA

(a) The State Defense Militia is considered a
reserve to the National Guard, but it is not a re-
serve component of the US. Armed Forces. Its
members are not subject to obligatory service
unless they are assigned to a unit that is ordered
or called out by the Governor. Only under
conditions described in this Rule are State em-
ployees who are members of the State Defense
Militia entitled to military leave with pay. L rider
these conditions an employee may be granted
military leave not to exceed 120 hours (prorated
for part-time employees) during any calendar
year.

(1) Infrequent special activities in the interest

of the State, usually not exceeding one

day, when so ordered by the Governor or

his authorized representative.

State duty for missions related to disasters,

[21

search and rescue, etc.

again :

only when

ordered by the Governor or his authorized
representative.

(b) State employees who are members of the
State Defense Militia are not entitled to military
leave with pay when volunteering for support of
functions or events sponsored bv civic or social
organizations even though such support has been
"authorized".

(c) Regularly scheduled unit training assem-
blies, usually occurring on weekends, are not ac-
ceptable for militan' leave with pav. however,

employing agencies are encouraged to arrange
work schedules to allow the employee to attend
this training.

(d) Deputy status may be verified with the Of-
fice of the Adjutant General, North Carolina
National Guard, ATTN: Vice Chief of Staff-
State Operations (VCSOP).

7 09

7:7 NORTH CAROLINA REGISTER July 1, 1992

PROPOSED RULES

Statutory Authority G.S. 126-4; 127 A- 16.

SUBCHAPTER II -SERVICE TO LOCAL
GOVERNMENT

SECTION .2400 - BASIC REQUIREMENTS FOR

A"SUBSTANTIALLY EQUIVALENT"

PERSONNEL SYSTEM

.2407 AREAS NOT COVERED BY THE

EQUIVALENCY EXEMPTION COVERAGE

Requirement. Authority for final determination
of the applicability of the State Personnel Act,
and thereby these requirements, as concerns any
local employee will continue to be vested in the
Office of State Personnel.

(Guide. Applicability is primarily contin-
gent upon the limits of contractual agree-
ments enabling the designated Federal or
State grant-in-aid to local government, the
basic details of which are set forth in the
State Personnel Act. Questions of cover-
age should be addressed to the Local Gov-
ernment Coordinator, Office of State
Personnel.)

Statutory Authority G.S. 126-11 .

.2408 CONDITION OF PRIVILEGE

A substantially equivalent personnel system ex-
emption, approved by the State Personnel Com-
mission under NCGS 1 26- 1 1 , is a condition of
privilege. Under such privilege, a local govern-
ment jurisdiction may operate its own system of
personnel administration for all employees of the
jurisdiction, including those subject to the State
Personnel Act. This privilege shall be continued
by the State Personnel Commission so long as
the local system remains substantially equivalent
to the Basic Requirements for a Substantially
Equivalent Personnel System. The Office of
State Personnel, in its staff capacity to the State
Personnel Commission, shall act on the Com-
mission's behalf in evaluating the ongoing
equivalency status of exempted systems.

Statutory Authority G.S. 126-11.

.2409 ONGOING EXPECTATIONS

In order that the Office of State Personnel shall
have access to the information and materials
necessary to an informed judgment of whether
an exempted, local personnel system remains
substantially equivalent, local jurisdictions desir-
ing to maintain exempted systems shall comply
with the following requirements:

(1) Recertification. Recertification of the
commitment by a Board of County Com-
missioners or Area Mental Health Authority

to maintain a system or portion of a system
of personnel administration in accordance
with the Basic Requirements for a Substan-
tially Equivalent Personnel System may be
necessary, at the discretion of the State Per-
sonnel Commission, in the following in-
stances:

(A)

Upon significant change in the member-
ship of the Board of Commissioners or

Area Authority.

(B) Upon passage of significant new legis-
lation or policy which will apply to the
local system or system portion.

[2} Staffing.

(A) the Board of County Commissioners or
Area Authority shall provide for the on-
going presence of a qualified staff for all
exempted portions of the local personnel
system.

(B) The staffing complement assigned to the
personnel system by the Board of County
Commissioners or Area Authority shall
at all times remain reasonably adequate to
assure that the day-to-dav operational de-
mands of the personnel management sys-
tem are met in an efficient and expedient
manner, and to assure that administrative
and technical requirements for maintain-
ing the personnel system in professionally
sound order are well served.

(C) Each jurisdiction which has been granted
a substantially equivalent personnel sys-
tem exemption shall annually, or upon
major interim change, tile with the Office
of State Personnel an organizational chart
which accurately depicts the complement
and organizational structure of the staff
currently assigned to the operation of the
personnel function.

(3) Filling of System Documentation. Each
jurisdiction which has been granted a sub-
stantially equivalent personnel system ex-
emption by the State Personnel Commission
shall annually, or upon substantial interim
change, file with the Office of State Person-
nel:

(A) All personnel policies currently pertaining
to exempt portions of the local system,
which have been adopted by the Board
of County Commissioners, County Man-
ager, Area Authority, or Area Director.

(B) Documentation which in material and
substance fully illustrates the design,
method, and process currently being em-
ployed in the administration of exempted

7:7 NORTH CAROLINA REGISTER July I, 1992

710

PROPOSED RULES

portions of the local personnel system.
If there has been no substantial change in
personnel policies or technical method
within an annual penod, the County
Manager or Personnel Director shall so
certify in a letter to the Local Government
Coordinator, Substantially Equivalent
Svstems, Office of State Personnel.

sonnel in the conduct of a comprehensive
annual review, which shall have as its pur

(C) Jurisdictions with exempted systems shall
cooperatively respond to related requests
by the Office of State Personnel for addi-
tional information which is deemed es-
sential to a complete and accurate
understanding of the design and process
of a local system.

(4) Records and Reports. Personnel records
shall be created and maintained as necessary
to serve the operational requirements of ex-
empted portions of the local personnel sys-
tem, and to maintain an auditable history
of position and employee actions processed.

(5) Records Pnvacy. Appropriate access and
privileges for employees and appropriate
limitations for other persons regarding the
storage, utilization, and disclosure of per-
sonnel records shall be assured according to
the proyisions of the Records Privacy Act
I NCOS 153A-98).

(6) Complaints. Jurisdictions with exempted
systems shall cooperate fully with the Office
of State Personnel in responding to and re-
solving complaints which may arise over the
course of time challenging the substantial
equivalency of a local personnel system.

(7) Formal .Annual Review. In addition to
other informal reviews which transpire
through ongoing, cooperative interchange,
jurisdictions with exempted systems shall

pose a determination of whether an ex-
emoted personnel system remains in
compliance with the Basic Requirements for
a Substantially Equivalent Personnel Sys-
tem. Where discrepancies are identified, the
Office of State Personnel shall formally de-
clare such findings to the jurisdiction in
writing, and shall work actively with the ju-
risdiction to effect a satisfactory resolution
which shall restore compliance. Where is-
sues of non-compliance cannot be resolved
within a reasonable length of time, the Office
of State Personnel shall recommend to the
State Personnel Commission that the sub-
stantially equivalent exemption be rescinded.

Statutory Authority G.S. 126-1 1.

.2410 OSP ASSISTANCE

The Office of State Personnel is available to
provide counsel and technical assistance on mat-
ters of substantial equivalency at any time. Such
assistance shall be provided within the limits of
available staff and administrative resources.
Consultation and informal, cooperative inter-
change is particularly encouraged prior to major
revisions in policy or technical process.

Statutory Authority G.S. 126-11.

.2411 SYSTEM ADVANCEMENTS

Changes or additions to an exempted personnel
svstem or system portion shall be substantial
equivalency in regard to new personnel legis-
lation or rulemaking at the state or federal level.

cooperate fully with the Office of State Per- Statutory Authority G.S. 126-1 1.

711

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FINAL RULES

1 his section contains rules filed for publication in the North Carolina Administrative Code where
a notice was not required for publication in the Register. Also, the text of final rules will be published
in this section upon request of any adopting agency.

TITLE 17 - DEPARTMENT OF REVENUE

CHAPTER 4 - LICENSE AND EXCISE TAX DIVISION

SUBCHAPTER 4C - CIGARETTE TAX

SECTION .0100 - GENERAL PROVISIONS

.0101 DEFINITIONS

In addition to those definitions as set out in G.S. 105-113.4, the following terms and phrases as used
in this Subchapter shall, unless the context requires otherwise, have the following meanings:

(1) Article. Tobacco Products Tax Act or Tobacco Products Tax Article, Article 2A, Chapter 105
of the General Statutes of North Carolina;

(2) Department. North Carolina Department of Revenue;

(3) Excise Tax. The excise tax levied under G.S. 105-113.5, G.S. 105-113.6, and G.S. 105-113.35;

(4) In this State or within this State - Within the exterior limits of the State of North Carolina, and
includes all territory within such limits owned by, leased by or ceded to the United States of
America;

(5) Meter. Cigarette metering machine;

(6) Meter Imprints. An ink stamp imprint made upon a package of cigarettes by a meter machine
to evidence the payment of the excise tax imposed thereon;

(7) Other Tobacco Product - A cigar or any other product that contains tobacco, other than a cig-
arette, and is intended for inhalation or oral use;

(8) Raleigh Office. Office of the license and excise tax division, Revenue Department, Raleigh;

(9) Revenue Agent. Revenue officer, auditor or other personnel of the North Carolina Department
of Revenue authorized by the secretary to act in his behalf;

(10) State. State of North Carolina;

(11) Vending Machine. Dispenser or dispensing machine;

(12) Wholesale Cigarette Dealer. Any person who sells cigarettes to others for resale by them who
does not qualify as a distributor under the definition of distributor in G.S. 105-1 13.4.

History Note: Statutory Authority G.S. 105-113.4; 105-262;
Eff February I, 1976;
Amended Eff June I, 1992; October 30, 1981.

SECTION .1300 - OTHER TOBACCO PRODUCTS LICENSES

.1301 LICENSE REQUIREMENTS

(a) Wholesale dealers and retail dealers, liable for excise tax on other tobacco products under G.S.
105-1 13.35, must obtain a continuing Other Tobacco Products Tax License on forms prescribed by the
Secretary for each "place of business" as defined under G.S. 105-113.36.

(b) Before an other tobacco products license is issued, proper application must be made as directed
by the Secretary. The application shall be signed and verified by oath or affirmation by the owner, if
a natural person, and in the case of an association or partnership, by a member or partner thereof, and
in the case of a corporation, by an executive officer thereof or by any person specifically authorized by
the corporation to sign the application to which shall be attached the written evidence of his authority.

(c) The licensee shall notify the Secretary in writing of any changes in the information previously
provided on the license application as such changes occur.

(d) The licensee shall be responsible for notifying the manufacturers from whom other tobacco pro-
ducts are purchased or received of the other tobacco products license issued by the Secretary and of any
subsequent change relative to the license.

7:7 NORTH CAROLINA REGISTER July 1, 1992 712

FINAL RULES

(e) No license shall be assignable or transferable and is not prorated.

History Note: Statutory Authority G.S. 105-113.35; 105-113.36; 105-262;
Eff. June 1, 1992.

SECTION .1400 - MANUFACTURERS OF OTHER TOBACCO PRODUCTS

.1401 UNVOICE REQUIREMENT

W'hen requested by the Secretary, manufacturers shall provide copies of all invoices, or equivalent in-
formation, on shipments of other tobacco products for sale in this State.

History Note: Statutory Authority G.S. 105-262;
Eff. June I, 1992.

.1402 SALES TO LICENSED DEALERS ONLY

(a) No manufacturer may make shipments of other tobacco products direct to a person in this State
not qualified and licensed as a wholesale or retail dealer of other tobacco products.

(b) .Any manufacturer of other tobacco products shipping such products to other wholesale or retail
dealers who are licensed pursuant to G.S. 105-1 13.36 for payment of the other tobacco products excise
tax is relieved of the requirement of paying the tax.

History Note: Statutory Authority G.S. 105-113.35; 105-113.37; 105-262;
Eff June 1, 1992.

.1403 MANUFACTURERS ACTING AS RETAILER

A retail dealer who manufacturers other tobacco products and sells those products to consumers in
this State is liable for the tax except for those transactions in other tobacco products which meet ex-
emption from the tax under G.S. 105-1 13.35.

History: Note: Statutory Authority G.S. 105-113.35; 105-262;
Eff June 1, 1992. '

SECTION .1500 - LIABILITY FOR OTHER TOBACCO PRODUCTS EXCISE TAX

.1501 PRIMARY LIABILITY

(a) The wholesale dealer or retail dealer who fust acquires or handles other tobacco products in this
State is liable for payment of the excise tax.

(b) The wholesale dealer or retail dealer who brings other tobacco products into this State is liable
for payment of the excise tax.

(1) The out-of-state wholesale dealer or retail dealer who brings such products into the State on its
own truck.

(2) The in-state wholesale dealer or retail dealer who brings such products into the State on its own
truck.

(c) The wholesale dealer or retail dealer who first receives or handles the other tobacco products in
this State is liable for payment of the excise tax.

(1) The wholesale dealer or retail dealer who is the original consignee of other tobacco products
manufactured or produced outside this State.

(2) The in-state wholesale dealer or retail dealer who first receives such products from outside the
State by common carrier or contract carrier.

History Note: Statutory Authority G.S. 105-113.35; 105-262;
Eff. June 1, 1992.

SECTION .1600 MILITARY EXEMPT SALES

.1601 EXEMPT SALES LIMITED TO ARMED FORCES AND THEIR DEPENDENTS

Other tobacco products sold to the Federal Government and its instrument;dities, such as the .Armed
Forces Exchange Services, are exempt from the excise tax. However, sales of other tobacco products

713 7:7 NORTH CAROLINA REGISTER July 1, 1992

FINAL RULES

by such services MUST BE LIMITED to members of the armed forces and their dependents who hold
identification cards entitling them to make purchases through armed forces exchange services.

History Note: Statutory Authority G.S. 105-11335; 105-262;
Eff. June 1, 1992.

.1602 DELIVERIES TO ARMED FORCES EXCHANGE SERVICES

Whenever tax exempt deliveries of other tobacco products are made by dealers to armed forces ex-
change services, the dealer must require a duly receipted invoice or copy thereof from the governmental
agent designated to accept delivery.

History Note: Statutory Authority G.S. 105-113.35; 105-262;
Eff. June I, 1992.

.1603 SALES OF OTHER TOBACCO PRODUCTS: BY OTHERS: NOT EXEMPT

If a person engages in the sale of any other tobacco products on a military reservation, regardless of
the fact that he may have a contract with the Federal Government, whereby the Federal Government
will receive a commission, flat fee or some other type of compensation on such sales, same does not
exempt the sale of such products from the excise tax. In such instances, such sales would not be made
by the Federal Government or an instrumentality thereof. Instead, all such sales are subject to the
excise tax.

History Note: Statutory Authority G.S. 1 05- 1 13.35; 105-262;
Eff. June 1, 1992.

SECTION .1700 - DESIGNATION OF EXEMPT SALES

.1701 MUST SELL AS DESIGNATED

Once other tobacco products are designated as tax exempt under G.S. 105-1 13.35, they must be sold
in tax exempt transactions.

History Note: Statutory Authority G.S. 105-113.37; 105-262;
Eff. June 1, 1992.

.1702 NO DELAYED OR DEFERRED TAX PAYMENT ALLOWED

No wholesale dealer or retail dealer or customer of a wholesaler may delay payment of the tax due
on other tobacco products by failing to pay tax on a sale that is not a designated sale or by overstating
the quantity of other tobacco products that will be resold in an exempt transaction.

History Note: Statutory Authority G.S. 105-113.37; 105-262;
Eff. June 1, 1992.

.1703 PRIOR WRITrEN NOTIFICATION REQUIRED FROM NC CUSTOMERS

A wholesale dealer may sell other tobacco products nontaxpaid to a customer who has tax exempt
sales provided the customer has notified the wholesale dealer in writing that the customer intends to
resell the items in exempt transactions. Where prior written notification is not provided, the wholesale
dealer must remit applicable tax.

History Note: Statutory Authority G.S. 105-1/3.37; 105-262;
Eff June 1, 1992.

.1704 FNVOICING REQUIREMENTS

The wholesale dealer must separately invoice and indicate the other tobacco products designated for
exempt transactions. For example, sales designated for customers with other tobacco product sales
outside North Carolina must be invoiced to read, "Designated for Sale Outside North Carolina".

History Note: Statutory Authority G.S. 105-113.37; 105-262;
Eff. June 1, 1992.

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FINAL RULES

.1705 REPORTING REQUIREMENTS

The wholesale dealer selling the designated other tobacco products must provide this Department, as
part of their monthly other tobacco products excise tax report, such information as required by the
Secretary.

History Note: Statutory Authority G.S. 105-11337; 105-262;
Eff. June 1, 1992.

.1706 ORIGLNAL SELLER NOT LIABLE FOR TAX

The wholesale dealer, who relies on the prior written exempt intent of its customer, is not required to
pay tax on the designated sales when filing a monthly report. However, the wholesaler must pay the
tax due on all other taxable sales.

History Note: Statutory Authority G.S. 105-1 13.37; 105-262;
Eff. June 1, 1992.

.1707 PENALTIES FOR IMPROPER HANDLING OF DESIGNATED PRODUCT

The tax liability plus penalties and interest will be held against the wholesaler's customer who sells
other tobacco products designated exempt in a taxable transaction. Customers violating designation
procedures should anticipate full penalties to be held on designated products improperly handled and
are not entitled to the timely payment discount.

History Note: Statutory Authority G.S. 105-1 13.37; 105-262;
Eff. June 1, 1992.

SECTION .1800 - MONTHLY REPORT, UNVOICE, AND RECORD REQUIREMENTS

.1801 MONTHLY REPORT REQUIREMENTS

(a) Wholesale dealers and retail dealers, liable for the tax under G.S. 105-113.35, must file monthly
reports on Form B-A-101 (Monthly Other Tobacco Products Excise Tax Report) with the Secretary
within twenty days after the close of each month showing transactions for the preceding month. This
monthly report is required whether or not any tax is shown to be due. The Secretary will provide the
forms which must be filled out in detail, and any remittance must accompany these reports.

(b) Failure to file a timely report with tax due for the month will result in the Department of Revenue
disallowing the 4 percent discount for timely payment and adding a 50 percent penalty and applicable
interest.

History Sote: Statutory Authority G.S. 105-113.37; 105-262;
Eff. June 1, 1992.

.1802 INVOICING REQUIREMENTS

(a) Sales invoices of wholesale dealers, whether resident or nonresident, liable for the tax shall indicate
payment of the excise tax on other tobacco products by the wording "North Carolina Other Tobacco
Products Tax Paid".

(b) All sales invoices of nonresident wholesale dealers shall show the point of origin and mode of
transportation for all shipments of other tobacco products into this State.

History Sote: Statutory- Authority G.S. 105-113.37; 105-262;
Eff. June 1, 1992.

.1803 RECORDS REQUIREMENTS

Ever," retail dealer and every wholesale dealer and their customers must keep records of inventories,
purchases, and sales of other tobacco products for at least three years. These records and inventories
must be maintained separately in such a manner as can be inspected and audited by the Secretary or
duly authorized representative at any time without having to go through and separate or segregate all
sales of the taxpayer in order to arrive at the amount of exempt sales or inventories.

History Sote: Statutory Authority G.S. 105-113.37; 105-262;
Eff. June 1, 1992.

715 7:7 NORTH CAROLINA REGISTER July I, 1992

FINAL RULES

SECTION .1900 - OTHER TOBACCO PRODUCTS VENDING MACHINES

.1901 IDENTIFICATION AND LOCATION REQUIRED

(a) No other tobacco products dispensing machine shall be allowed to operate in this State that does
not have affixed thereto the identification required under the Tobacco Products Tax Article.

(b) Wholesale dealers or retail dealers owning, leasing, furnishing or operating other tobacco products
vending machines shall affix to each such machine in a conspicuous place an identification sticker or
device, which shall show the name, address and telephone number of the operator owning and placing
such machine on location. The owner of the business wherein such machine is located shall also be
responsible for seeing that such vending machine is so identified.

(c) It shall be the duty of any person, firm or corporation operating other tobacco products vending
machines to have available for the Department information as to the location of any and all vending
machines so operated by such operator, and make such information available at any time to the Sec-
retary or his authorized agent.

History Note: Statutory Authority G.S. 105-65.1; 105-113.17; 105-262;
Eff. June 1, 1992.

CHAPTER 7 - SALES AND USE TAX

SUBCHAPTER 7B - STATE SALES AND USE TAX

SECTION .0100 - GENERAL PROVISIONS

.0101 IMPOSITION OF AND LIABILITY FOR COLLECTING AND REMITTING TAX

(a) All retail sales of tangible personal property are subject to the four percent (three percent until
July 16, 1991), three percent, two percent or the one percent sales or use tax unless specifically exempt
by statute. The local sales and use tax rate remains at two percent and applies to those transactions
which are subject to the general state rate of sales and use tax which increased from three percent to four
percent effective July 16, 1991. The gross receipts derived by a utility from sales of electricity, piped
natural gas or intrastate telephone service are subject to the three percent state rate of sales tax, other
than receipts from the sale of electricity by a municipality whose only wholesale supplier of electric
power is a federal agency and who is required by contract with that federal agency to make payments
in lieu of taxes. The statute was amended effective January 1, 1989, to substitute the term "local tele-
communications services" for the term "intrastate telephone service," as used in the above sentence,
and to levy the three percent rate of tax only on receipts derived from local telecommunications services
as defmed by G.S. 105- 120(e). A new subdivision, G.S. 105-164.4 (a) (4c) was added, effective January
1, 1989, which levies a six and one-half percent sales tax on the gross receipts derived from toll or pri-
vate telecommunications services, as defined by G.S. 105- 120(e), that both originate from and terminate
in the state. The provisions of G.S. 105-164.4 (a) (c) do not apply to telephone membership corpo-
rations as described in Chapter 1 17 of the General Statutes. The gross receipts derived by a utility from
sales of electricity, piped natural gas and telecommunications services are not subject to the local sales
or use tax. Wholesale sales are not subject to the tax if made pursuant to the conditions set forth in
the statutory definition of wholesale sale. Every person making retail sales of taxable tangible personal
property or charges for taxable utility services is required to register with the department and collect
and remit all tax due on such sales.

(b) A use tax at the applicable rate is levied on taxable tangible personal property purchased or re-
ceived from within or without this state for storage, use or consumption in this state. The liability for
the tax is not extinguished until it is fully paid, except that payment of the tax to a vendor who charges
such tax shall relieve the purchaser of further liability with respect to the tax so paid. Where retail sales
or use tax is due and has already been paid in another state by the purchaser with respect to such tan-
gible personal property, such tax may be credited against the North Carolina use tax due theTeon. If
the tax paid in another state is less than the North Carolina use tax due, the difference must be paid in
this State. No credit shall be allowed for sales or use taxes paid in another state if that taxing juris-
diction does not grant similar credit for sales taxes paid in North Carolina. Every person outside this
state who is engaged in business in this state, as hereinafter defined, is required to register with the de-
partment and collect and remit the tax due on all taxable tangible personal property sold or delivered
for storage, use or consumption in this state. Every person who purchases from out-of-state vendors

7:7 NORTH CAROLINA REGISTER July 1, 1992 716

FINAL RULES

any taxable tangible personal property for storage, use or consumption in this state upon which the tax
has not been fully paid must register with the department and remit the tax due on such purchases.
A fee is not required for registration by a consumer and a license is not issued in connection with such
registration; however, all registrants will be furnished report forms to be used in reporting and remitting
all tax due.

(c) Effective October 1, 1989, retail sales of motor vehicles are exempt from sales tax and are subject
to the three percent highway use tax with a minimum tax of forty dollars ($40.00) applicable thereto,
with certain exceptions, and a maximum tax of one thousand dollars ($1,000.00) on any one motor
vehicle increasing to one thousand five hundred dollars ($1,500.00) July 1, 1993. Reference is made to
17 NCAC 7B .4601 for the treatment of sales of motor vehicles.

(d) Effective January 1, 1990, all retail sales of motor vehicle tires are subject to the one percent scrap
tire disposal fee. New motor vehicle tires purchased within or without this state for use in this state
are subject to the one percent fee on their cost price.

(e) Effective July 1, 1991, retail sales of new tires for motor vehicles, construction equipment, agri-
cultural and industrial equipment, aircraft, and new tires that are sold to be placed on vehicles offered
for sale, lease or rental are subject to the one percent scrap tire disposal tax. Purchases of new tires
from outside North Carolina for storage, use or consumption in North Carolina or to be placed on
vehicles offered for sale, lease or rental are subject to the one percent rate on the cost price of each new
tire.

History Sole: Statutory Authority G.S. 105-164.4; 105-164.5; 105-/64.6; 105-262;
Eff. February I, 1976;
Amended Eff. June 1, 1992; October 1. 1991; October 1, 1990; May 1, 1990.

.0125 FLEA MARKETS

(a) Every person who sells tangible personal property at a flea market, other than his own household
personal property, is required to obtain a Merchants Certificate of Registration License to engage in
and conduct such business. When making sales at the flea market such person shall conspicuously
display the license or shall display a receipt from the Department of Revenue showing that he has ap-
plied for the license in cases where he has not yet received the license. Every person who sells only
his own household personal property at a flea market must certify in writing to the person from whom
he leases or rents space that he will seli only his own household personal property and when selling
tangible personal property at the flea market must conspicuously display a copy of the written state-
ment. A person who leases or rents space to others at a flea market may not lease or rent space unless
the person who wishes to lease or rent the space furnishes evidence that he has obtained or applied for
the Merchants Certificate of Registration License or furnishes a written statement that the property
which he will sell at the flea market will consist only of his own household personal property. Eor the
purpose of this Rule, the term "flea market" means a place or location where space is leased or rented
to persons for the purpose of selling tangible personal property.

(b) A person who leases or rents space to others at a flea market shall keep records of retailers to
whom he has leased or rented space at the flea market. Such records shall include:

(1) the date,

(2) the name and address of the lessee,

(3) the sales and use tax registration number of the lessee or the receipt number and the name of the
Revenue Officer issuing the receipt in cases where the lessee has applied for but has not yet re-
ceived the Merchants Certificate of Registration License, and

(4) a copy of the certified statement of vendors who sell only their own household personal property
wherever applicable.

(c) Any person required to keep records or supply information who willfully fails to keep such records
or supply information shall, in addition to other penalties provided by law, be guilty of a misdemeanor
and shall be punished by imprisonment not to exceed 30 days, or by a fine not to exceed two hundred
dollars ($200.00), or by both such fine and imprisonment. If any officer, agent, and/or employee of
any person, firm or corporation shall willfully fail, refuse or neglect to make out, file, and/or deliver any
reports or blanks, as required by law, or to answer any question therein propounded, or to knowingly
and willfully give a false answer to any question wherein the fact inquired of is within his knowledge,
or upon proper demand to exhibit to the Secretary of Revenue or her duly authorized representatives
any book, paper, account, record or memorandum of such person, firm, or corporation in his pos-
session and/or under his control, shall be guilty of a misdemeanor and fined not less than one hundred
dollars ($100.00) nor more than one thousand dollars ($1,000) for each offense. The willful failure,

717 7:7 NORTH CAROLINA REGISTER July I, 1992

FINAL RULES

refusal, or neglect to observe and comply with any order, direction, or mandate of the Secretary of
Revenue, or to perform any duty enjoined by Subchapter 1 of the Revenue Act by any person, firm,
or corporation, or any officer, agent, or employee thereof, shall, for each day such failure, refusal or
neglect continues constitute a separate and distinct offense.

History Note: Statutory Authority G.S. 105-164.4; 105-164.6; 105-262;
Eff February 1, 1986;
Amended Eff. June 1, 1992.

SECTION .0200 - GENERAL APPLICATION OF LAW TO MANUFACTURING AND

LNDUSTRIAL PROCESSING

.0201 TAX ON MANUFACTURING AND PROCESSING MACHLNERY

(a) Sales of mill machinery, mill machinery parts and accessories to manufacturing industries and
plants are taxable at the rate of one percent subject to a maximum tax of eighty dollars ($80.00) per
article. Manufacturers' Certificates, Form E-575, are available from the sales and use tax division,
North Carolina Department of Revenue, for use in connection with such sales as the vendor's authority
to apply the one percent rate of sales or use tax, with a maximum tax of eighty dollars ($80.00) per
article.

(b) Sales to contractors and subcontractors purchasing mill machinery or mill machinery parts and
accessories for use by them in the performance of contracts with manufacturing industries and plants
and sales to subcontractors purchasing mill machinery or mill machinery parts and accessories for use
by them in the performance of contracts encompassed in such contracts with manufacturing industries
and plants are subject to the one percent rate of tax, with a maximum tax of eighty dollars ($80.00)
per article where applicable. Such mill machinery or mill machinery parts and accessories must be for
use by a manufacturing industry or plant in the production process, as the term "production" is defined
in 17 NCAC 7B .0202(a)(1), to qualify for the one percent rate of tax with a maximum tax of eighty
dollars ($80.00) per article when purchased by such contractors or subcontractors. Contractors and
subcontractors may obtain Contractor's and Subcontractor's Certificate, Form E-580, from the Sales
and Use Tax Division, North Carolina Department of Revenue, to be executed by them and furnished
to their vendors in connection with such purchases as the vendor's authority to apply the one percent
rate of tax thereto.

History Note: Statutory Authority G.S. 105-164.4; 105-164.6; 105-262; 105-264;
Eff. February 1, 1976;
Amended Eff. June 1, 1992; May 11, 1979; September 30, 1977.

SECTION .0300 - SPECIFIC TANGIBLE PERSONALTY CLASSIFIED FOR USE BY

INDUSTRIAL USERS

.0301 MILL MACHINERY

Sales of mill machinery, mill machinery parts and accessories to manufacturing industries and plants
for industrial processing are subject to the one percent sales or use tax, subject to a maximum tax of
eighty dollars ($80.00) per article where applicable. The following items, when sold to manufacturing
industries and plants for use in their manufacturing process, are considered mill machinery, mill ma-
chinery' parts and accessories within the meaning of the Sales and Use Tax Article:

(1) motors, pulleys, motor bases but not foundations, gears, belts, chains and textile rope drives, line
shafting with hangers and pulleys, and other types and makes of drives connecting motors to the
driven machinery for direct production processes;

(2) controls for motors consisting of:

(a) magnetic starters, push button stations, pressure and float switches, and other types of relays
operating motor controllers;

(b) compensators of auto transformer starters;

(d) drum controllers and resistors;

(e) disconnecting switches when built as a part of magnetic starters;

(f) oil switches;

7:7 NORTH CAROLINA REGISTER July 1, 1992 718

FINAL RULES

(g) synchronous motor controllers if a part of production machinery, but not otherwise;

(3) repair and renewal parts for motors and motor controllers as production machinery;

(4) steam engines, gasoline engines, diesel engines, motor generators;

(5) pumps for industrial processes, air compressors, air hoses and nozzles, and pipe for carrying
compressed air from compressor to hose for cleaning machinery and equipment; pumps used to
remove waste of a manufacturing process;

(6) moistening or humidifying equipment on or adjacent to machinery when the function of this
equipment is the conditioning of materials for processing; This includes piping located on or im-
mediately adjacent to mill machinery and which supports and supplies water to moistening or
humidifying equipment, but does not include general piping in the mill supplying water to
moistening or humidifying equipment. General piping in the mill is taxable at the state rate of four
percent (three percent until July 16, 1991) and any applicable local sales or use tax;

(7) that portion of the purchase price of general air conditioning systems allocated to conditioning
materials for processing;

(8) boiler room machinery with flue cleaners, and brushes for boiler tubes, when the boilers are
operated for power generation or supplementary thereto in connection with manufacturing proc-
esses; stokers, shovels, and other equipment used in boiler rooms for feeding fuels and water to
power units; Smoke stacks which are attached to and are a part of the boilers; Equipment as used
here does not include storage places for fuels and water, or reserve tanks, bins or other similar items
located either inside or outside power rooms or buildings. Storage tanks, bins or other facilities
for water, fuel, raw materials or manufactured products are not considered as mill machinery or
accessories to such machinery' and are therefore subject to the four percent (three percent until July
16, 1991) state tax and any applicable local sales or use tax. However, tanks, bins and other fa-
cilities in which mixing, blending or other processing action takes place are classified as mill ma-
chinery or accessories and are therefore subject to the one percent rate of tax when such items are
used in the manufacturing operation;

(9) conveyors, hoists and hoist cables, (but not track or other fixtures determined to be a part of and
which lend support to the building or structure) roving trucks and other materials handling
equipment, including lift trucks, used in individual mills for transporting materials or spindles or
like articles from inventory to the manufacturing process, transporting materials during temporary
interruptions in the manufacturing process in the mill or moving the finished product from the
manufacturing or processing line into shipping and storage areas or yards at the individual mill or
plant; Included for the purpose of this Paragraph are work tables, with seats and other accessories
thereto at which employees work on materials in process; racks, bins, canvas baskets and similar
equipment for handling goods in process; and roving cans;

(10) hand tools designed for use on a particular machine, such as special wrenches supplied by makers
of textile machinery for special machines; hammers, screwdrivers, blow torches, soldering irons,
rubber mallets and similar general-use tools and machines used in repair shops to repair mill ma-
chinery or along the production line to perform work necessary as a part of the manufacturing
processes and all files for general and specific use in a mill or manufacturing plant;

(11) metal-cutting and wood-cutting lathes and their accessories in all kinds of manufacturing plants,
factories and mills; band saws, circular saws, all hack saws and blades; shapers and accessories,
jointers, planers; drill presses; welding machines; torches; and all other manufacturing machinery
and accessories thereto; spinners' whisks, comber brushes and other brushes, in hosiery mills and
cotton mills, designed for use on particular machines; polishing wheels, sanding machines and
drums, portable or stationary; sandpaper, emery cloth, rubbing tow, paint brushes and filler
brushes, steel wool, rubbing waste or cloths or other hand or machine devices for polishing or
other finishing processes on a manufactured product; oils and lubricants for use in lubricating
production machinery; and wiping cloths, cleaning compounds and paint for mill machinery, mill
machinery parts and accessones; chemicals or other materials used to clean ingredient or compo-
nent parts of manufactured products but which do not enter into or become an ingredient or
component part of property being manufactured;

(12) dyehouse thermometers, recording charts for mill machinery, hank scales and yarn scales; and
tachometers and other testing devices used for checking performance or output of machinery;

( 13) air compressors, steam hose and air hose for cleaning mill machinery;

( 14) cloth pencils and mill crayons for marking cloth, lumber or other ingredients in process;

(15) dynamite and other explosives used in mining and quarrying whether or not such mining or
quarrying is carried on as a regular or continuous business within itself, or as a part ot a manu-
facturing industry; Sales of explosives used in excavation in connection with building or con-

79 7:7 NORTH CAROLINA REGISTER July 1, 1992

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struction are subject to the four percent (three percent until July 16, 1991) state and any applicable
local sales or use tax;

(16) machinery and equipment used in packaging manufactured products as a part of the manufac-
turing process;

( 1 7) pollution abatement equipment used in the manufacturing process.

History Note: Statutory Authority G.S. 105-1644; 105-164.6; 105-262;
Eff. February I, 1976;
Amended Eff. June 1, 1992; October 1, 1991; January 3, 1984.

SECTION .0700 - SPECIFIC INDUSTRY PURCHASES

.0713 ELECTROPLATING LNDUSTRIES

(a) Receipts derived from electroplating tangible personal property belonging to users or consumers
are not subject to sales or use tax. However, such persons are liable for remitting the four percent
(three percent until July 16, 1991) state tax and any applicable local sales or use tax on all metal and
other tangible personal property purchased for use in the operation of their businesses.

(b) Receipts derived from electroplating tangible personal property for persons who will sell same at
retail or wholesale are not subject to sales or use tax. Persons doing this type of electroplating are
classified as manufacturers and their purchases of metal and other tangible personal property which
enters into or becomes an ingredient or component part of property being electroplated for sale are
exempt from tax under the provisions of G.S. 105- 164. 13(8). Purchases by such persons of items which
are properly classified as mill machinery or mill machinery parts and accessories are subject to the one
percent rate of tax with a maximum tax of eighty dollars ($80.00) per article as set forth by G.S.
105-164.4(a)(ld)b.

History Note: Statutory Authority G.S. 105-164.4; 105-164.6; 105-164.13; 105-262;
Eff. February 1, 1976;
Amended Eff. June I, 1992; October I, 1991.

SECTION .1100 - SALES OF BULK TOBACCO BARNS: FARM MACHINES AND

MACHLNERY

.1101 FARM MACHINES: MACHINERY: BULK TOBACCO BARNS

(a) Sales to farmers of machines and machinery, and parts therefor or accessories thereto for use by
them in planting, cultivating, harvesting or curing of farm crops including nursery stock, or to dairy
operators, poultry farmers, egg producers, and livestock farmers for use by them in the production of
dairy products, poultry products, eggs, or livestock are subject to the one percent rate of tax with a
maximum tax of eighty dollars ($80.00) per article of merchandise. Sales of machines and machinery,
and the parts therefor or accessories thereto, to farmers for any purpose or use not defined in this Rule,
or to any person other than a farmer as herein defined, even though for a use or purpose herein defined,
are subject to the four percent (three percent until July 16, 1991) state and any applicable local sales
or use tax without limitation. In other words, to qualify for the one percent rate of tax and the eighty
dollar ($80.00) maximum tax per article, the transaction must be a sale of a machine or machinery, or
parts therefor or accessories thereto, to a farmer for one of the uses or purposes herein defined and
unless all three conditions are met, the sale is subject to the four percent (three percent until July 16,
1991) state and any applicable local sales or use tax without limit. The following sales of tangible
personal property to farmers qualify for the one percent rate of tax with an eighty dollar ($80.00)
maximum tax per article of merchandise:

(1) Sales to farmers of bulk tobacco barns, racks and all parts and accessories thereto and similar
apparatus used for the curing and drying of any farm product are subject to the one percent rate
of tax with a maximum tax of eighty dollars ($80.00) per article of merchandise. The sale to
farmers of a bulk curing barn with perforated floors, curers, racks, fans, motors, dampers and
flues will constitute the sale of one article and an eighty dollar ($80.00) maximum tax will be
applicable thereto.

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(2) Sales to farmers of grain, feed, or soybean storage facilities and accessories thereto, whether or
not dryers are attached, and all similar apparatus and accessories thereto for the storage of grain,
feed or soybeans.

(3) Sales to farmers of commercially manufactured portable swine equipment or facilities and ac-
cessories thereto; and sales to farmers for installing on the farm of all bulk feed handling equip-
ment which has been designed and constructed to be used for raising, feeding, and the
production of Livestock and poultry products and all cages used in the production of livestock
and poultry products are subject to the one percent rate of tax with a maximum tax of eighty
dollars ($80.00) per article of merchandise. The sale of the total number of poultry cages to be
served by the same automatic feeder, automatic waterer or automatic egg collector constitutes
the sale of a single article that is separate and distinct from a feeder, waterer or egg collector.
The statute was expanded to include sales to farmers of commercially manufactured swine,
livestock or poultry equipment or facilities and accessories thereto. Effective September 1, 1987,
this Subparagraph is rescinded as a result of a statutory amendment to G.S. 105-164. 13(4c).
See 17 NCAC 7B .1 123 for information in regard to the exemption from sales and use taxes for
sales of articles described in this Subparagraph.

(4) Sales of containers to farmers and producers for use in the planting, producing, transporting or
delivery of their products are subject to the one percent rate of tax with a maximum tax of eighty
dollars (S80.00) per article of merchandise when such containers do not go with and become a
part of the sale of the product at wholesale or retail.

The Farmer's Certificate, Form E-599, may completed by a farmer and accepted by a retail or wholesale
merchant as the authority for applying the one percent rate of tax, maximum eighty dollars ($80.00)
per article, to the sale or purchase of tangible personal property which is farm machinery or parts and
accessories thereto, as defined by Statute and in this Rule. The use of the certificate is optional. It is
to be used only by farmers in the manner and for the purpose described on the back side of the certif-
icate.

(b) The following are examples of sales of machines and machinery and the parts therefor and ac-
cessories thereto, which qualify for the one percent rate of tax with the eighty dollars ($80.00) maximum
when sold to general farmers for use by them in planting, cultivating, harvesting or curing farm crops:

(1)

tractors,

(2)

plows,

(3)

harrows,

(4)

cultivators,

(5)

mowers,

(6)

planters,

(7)

corn pickers and snappers

(8)

manure spreaders,

(9)

manure loaders,

(10)

harvester threshers,

(11)

rotary tillers,

(12)

fertilizer distributors,

(13)

wind-rowers,

(14)

forage blowers,

(15)

stalk cutters.

(16)

seeders,

(17)

grain loaders,

(18)

harvesters,

(19)

cotton pickers,

(20)

rotary hoes,

(21)

com and hay elevators,

(22)

tobacco curers,

(23)

tobacco flues,

(24)

tobacco trucks or slides.

(25)

wagons.

(26)

non-highway trailers,

(27)

mechanical rakes,

(28)

balers.

(29)

rod weeders.

(30)

combines,

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(31) tobacco transplanters,

(32) shredders for corn stalks,

(33) power loader lifts,

(34) platform carriers,

(35) portable insecticide sprayers,

(36) chain saws,

(37) motor oils, greases, lubricants and anti-freeze;

(38) hydraulic fluids.

(c) Examples of items which are subject to the four percent (three percent until July 16, 1991) state
and any applicable local sales or use tax when sold to general farmers:

(1) lawn mowers;

(2) snow plows;

(3) oil storage tanks and fittings;

(4) drainage tile;

(5) paint, cleaning compounds and brushes;

(6) baler twine;

(7) tobacco sticks and tobacco twine;

(8) tools for maintaining machinery and equipment;

(9) plastic mulch, plant bed covers and tobacco canvas.

(d) The lists in Paragraphs (b) and (c) of this Rule are not intended to be exclusive, but are for il-
lustrative purposes only. If there is any question whatever as to the tax status of any item which does
not appear therein, such question should be submitted to the secretary, together with a detailed state-
ment of the business of the purchaser, the design and structure of the article, and its use, to the end that
the applicable rate of tax may be correctly determined.

(e) The word farmer as used in this Rule includes dairy operators, poultry farmers, egg producers,
livestock farmers, nurserymen, greenhouse operators, orchardmen and other persons coming within the
generally accepted definition of the word. It does not include a person who merely cultivates a garden
for personal use.

History Note: Statutory Authority G.S. 1 05-164.4; 105-164.6; 105-262;
Eff February I, 1976;
Amended Eff. June I, 1992; October I, 1991; February I, 1988; March 1, 1984.

.1123 CERTAIN SALES TO COMMERCIAL LIVESTOCK AND POULTRY FARMERS

(a) Sales to commercial livestock and poultry farmers of materials to be used exclusively in the con-
struction, repair or improvement of any enclosure or structure specifically designed, constructed, and
used for commercial purposes for housing, raising, or feeding livestock and poultry or for housing
equipment necessary for these activities, including work space used solely for these commercial activ-
ities, are exempt from sales and use taxes. Likewise, sales of materials for the above described uses to
contractors performing contracts with commercial livestock and poultry farmers and subcontractors
performing contracts with general contractors who have contracts with commercial livestock and
poultry farmers shall be exempt. The exemption from tax extends only to building materials, as such,
which are used in the construction, repair or improvement of such enclosures or structures and which
become a part of such enclosures or structures. The exemption does not extend to sales of equipment
and machinery used to equip such enclosures or structures prior to September 1, 1987. Effective Sep-
tember 1, 1987, the exemption was expanded to include sales of commercially manufactured swine,
livestock, and poultry facilities to be used for commercial purposes for housing, raising, or feeding of
swine, livestock, or poultry or for housing equipment necessary for these commercial activities; building
materials, supplies, fixtures, and equipment to be used in the construction, repair, or improvement and
that become a part of an enclosure or structure specifically designed, constructed and used for such
above commercial purposes; and commercially manufactured swine, livestock, and poultry equipment,
parts and accessories therefor placed or installed in or affixed to such facilities, enclosures, or structures.

(b) For the purpose of this Rule, the words "swine, livestock and poultry" include swine, cattle,
horses, mules, sheep, chickens, turkeys and other similar domestic animals and fowl usually held or
produced on a farm for commercial purposes. The word "commercial" shall mean "held or produced
for income or profit." It does not include one who merely produces swine, livestock or poultry for
one's personal use or consumption and not for sale. Commercial swine, livestock or poultry farmers,
and contractors performing contracts with commercial swine, livestock or poultry farmers and sub-
contractors performing contracts with general contractors who contract with commercial swine, live-

7:7 NORTH CAROLINA REGISTER July 1, 1992 722

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stock or poultry farmers may obtain Commercial Swine, Livestock and Poultry Farmers' Certificate,
Form E-599S, from the Sales and Use Tax Division, North Carolina Department of Revenue, to be
executed by them and furnished to their vendors in connection with such purchases as the vendor's
authority to exempt such purchases from sales and use taxes.

History Sote: Statutory Authority G.S 105-1644; 105-164.6; 105-262;
Eff February 1,1987;
Amended Eff. June I, 1992; February I, 1988.

SECTION .1500 FINANCE COMPANIES: FINANCE CHARGES AND CARRYING

CHARGES

.1501 FINANCE COMPANIES

(a) If a finance company maintains a regular place of business wherein repossessed tangible personal
property is sold or placed on display for sale as an adjunct to the principal business of the finance
company, such finance company must register with the department and collect and remit the applicable
state and local tax on its sales.

(b) If a finance company, as an incident only of its finance business, has occasion, from time to time,
to repossess articles of tangible personal property upon which payments have become delinquent and
sells such tangible personal property either at public auction or at private sale, such sales shall be
deemed occasional sales and are not subject to the tax.

History Sote: Statutory Authority G.S. 105-164.3; 105-164.4; 105-262;
Eff. February 1 . 1976;
Amended Eff June 1, 1992; October I, 1991.

SECTION .1600 - SALES TO OR BY HOSPITALS: EDUCATIONAL: CHARITABLE OR
RELIGIOUS INSTITUTIONS: ETC.. AND REFUNDS THERETO

.1602 REFUNDS TO LNSTITUTIONS: ETC.

(a) Subject to the terms and conditions herein set forth, hospitals not operated for profit, educational
institutions not operated for profit, churches, orphanages, and other charitable or religious institutions
or organizations not operated for profit are entitled to semiannual refunds of sales and. or use taxes paid
by them in North Carolina on their direct purchases of tangible personal property used in carrying on
their nonprofit work. For refund purposes, purchases by contractors of building materials, supplies,
fixtures and equipment which become a part of or are annexed to any building or structure being
erected, altered or repaired under contract with any such institution or organization and which are used
in carrying on the nonprofit activities of such institution or organization are deemed to be direct pur-
chases. The provisions of this Rule apply to out-of-state institutions and organizations to the extent
of sales or use taxes paid by them in this state on purchases of tangible personal property for use in
earning on charitable, religious or educational activities within or without this state which are not for
profit.

(b) In addition to the provisions in (a) of this Rule for refunds of sales and or use taxes paid by
hospitals not operated for profit, all other hospitals not specifically excluded herein are entitled to
semiannual refunds of sales and or use taxes paid by them on medicines and drugs purchased for use
in carrying out the work of such hospitals.

(c) The refund provisions contained in this Rule do not apply to the tax on taxable sales by the in-
stitutions and organizations named in Paragraph (a) of this Rule and no part thereof shall be refunded
or claimed as a refund. Institutions and organizations properly registered for sales and use tax purpose
may purchase the tangible personal property which they resell without paying tax thereon to their
suppliers provided they have furnished such suppliers with properly executed certificates of resale, Form
E-590. Certificates of resale may not be used by any institution or organization named in this Rule,
or by any other vendee, in making purchases of tangible personal property to be used or consumed by
such purchaser.

(d) Refund claims of the organizations and institutions named in Paragraph (a) of this Rule must
be filed with the North Carolina Department of Revenue covering the first six months of the calendar
year on or before the 15th day of October following the close of the fust six months period. Refund

723 7:7 NORTH CAROLINA REGISTER July 1, 1992

FINAL RULES

claims covering the second six months of the calendar year must be filed on or before the 1 5th day of
April following the close of the second six months period. Refund claims filed after the due date shall
be subject to the following penalties for late filing:

(1) refund claims filed within 30 days after the due date, 25 percent;

(2) refund claims filed more than 30 days after the due date but within six months of the due date,
50 percent.

The amount of the penalties in this Rule shall be deducted from the face amount of the refund due the
claimant. The statute prohibits the payment of any refund claim not filed within the stipulated time.

(e) All refund claims must be substantiated by proper documentary proof and only the taxes actually
paid by the claimant during the period for which the claim for refund is filed may be included in the
claim. Any local sales or use taxes included in the claim must be separately stated in the claim for re-
fund. In cases where more than one county's tax has been paid, a breakdown must be attached to the
claim showing the amount of each county's local tax separately.

(f) As to taxes paid on the claimant's purchases for use, other than those made by contractors per-
forming work for the claimant, invoices or copies of invoices showing the property purchased, the cost
thereof, the date of purchase and the amount of state and local sales or use tax paid during the refund
period will constitute proper documentary proof.

(g) To substantiate a refund claim for sales or use taxes paid on purchases of building materials,
supplies, fixtures and equipment by its contractor, the claimant must secure from such contractor cer-
tified statements setting forth the cost of the property purchased from each vendor and the amount of
state and local sales or use taxes paid thereon. In the event the contractor makes several purchases from
the same vendor, such certified statement must indicate the invoice numbers, the inclusive dates of the
invoices, the total amount of the invoices and the sales and use taxes paid thereon. Such statement
must also include the cost of any tangible personal property withdrawn from the contractor's warehouse
stock and the amount of state and local sales or use tax paid thereon by the contractor. Similar certified
statements by his subcontractors must be obtained by the general contractor and furnished to the
claimant. Any local sales or use taxes included in the contractor's statements must be shown separately
from the state sales or use taxes. The contractor's statements must not contain sales or use taxes paid
on purchases of tangible personal property by such contractors for use in performing the contract which
does not annex to, affix to or in some manner become a part of the building or structure being erected,
altered or repaired for the institutions and organizations named in Paragraph (a) of this Rule. Exam-
ples of property on which sales or use tax has been paid by the contractor and which should not be
included in the contractor's statement are scaffolding, forms for concrete, fuel for the operation of ma-
chinery and equipment, tools, equipment repair parts, equipment rentals and blueprints.

(h) The refund provisions set forth in this Rule apply only to institutions and organizations described
in Paragraphs (a) and (b) of this Rule, but do not apply to nonprofit fraternal, civic or patriotic or-
ganizations, notwithstanding that such organization may perform certain charitable functions. The
refund provisions set forth in this Rule do not apply to organizations, corporations and institutions
which are owned and controlled by the United States, the state or a unit of local government except
hospital facilities created under Article 12 of Chapter 131 of the General Statutes and nonprofit hospi-
tals owned and controlled by a unit of local government that elect to receive semiannual refunds under
G.S. 105-154. 14(b) instead of annual refunds under G.S. 105- 164. 14(c). Any nonprofit hospital owned
and controlled by a unit of local government may submit a written request to receive semiannual re-
funds under G.S. 105-164. 14(b) instead of annual refunds under G.S. 105-164. 14(c). The request is
effective beginning with the six-months refund period following the date of the request and applies to
sales or use taxes paid on or after the first day of the refund period for which the request is effective.

(i) The refund provisions of this Rule are not applicable to sales taxes incurred by employees on
purchases of food, lodging or other taxable travel expenses paid by employees and reimbursed by the
type institutions and organizations named in Paragraph (a) of this Rule. Such expenses are personal
to the employee since the contract for food, shelter and travel is between the employee and the provider
and payment of the tax is by the employee individually and personally. Such institutions and organ-
izations have not incurred and have not paid any sales tax liability. In such cases, it has chosen to re-
imburse a personal expense of the employee. The refund provisions of this Rule do not apply to sales
tax paid by the organizations and institutions named in Paragraph (a) of this Rule on charges by a
utility for electricity, piped natural gas and local, toll or private telecommunications services; to the
occupancy taxes levied and administered by certain counties and cities in this state; to the highway use
taxes paid on the purchase, lease or rental of motor vehicles; to the scrap tire disposal fee levied on new
motor vehicle tires; or to the scrap tire disposal tax levied on new motor vehicle tires. Such taxes
should not be included in any claim for refund tiled by such institutions and organizations.

7:7 NORTH CAROLINA REGISTER July I, 1992 724

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History Note: Statutory Authority G.S. 105-164.14; 105-262; 105-264;
Eff. February I, 1976;
Amended Eff June 1. 1992; October I, 1991; May 1, 1990; February I, 1988.

SECTION .1900 - TIRE RECAPPERS AND RETREADERS: TIRE AND TUBE REPAIRS

.1905 SALES TO TIRE RECAPPERS

(a) Sales to tire recapppers of camelback or other rubber products, cement and rubber solvent, cord
fabric, wheel weights and other items of a similar nature which enter into or become an ingredient or
component part of the recapped tires or are attached to and delivered with the tires to the customer are
exempt from tax.

(b) The gross receipts derived by a utility from sales of electricity and piped natural gas to tire
recappers for use in connection with the operation of the recapping plant are subject to the three per-
cent state rate of tax. Sales of other fuel to tire recappers for use in connection with the operation of
the recapping plant are subject to the one percent rate of tax.

(c) Sales to tire recappers of mill machinery, or parts and accessories therefor, for use exclusively in
the recapping process are subject to the one percent rate of tax, with a maximum tax of eighty dollars
($80.00) per article. Sales to contractors and subcontractors of mill machinery or mill machinery parts
and accessories for use by them in the performance of contracts with manufacturing industries and
plants and sales to subcontractors purchasing mill machinery or mill machinery parts and accessories
for use by them in the performance of contracts encompassed in such contracts with manufacturing
industries and plants are subject to a one percent rate of tax, with a maximum tax of eighty dollars
($80.00) per article where applicable. Such mill machinery or mill machinery parts and accessories
must be for use by tire recappers in the production process, as the term "production" is defined in 17
NCAC 7B .0202(a)(1), to qualify for the one percent rate of tax with a maximum tax of eighty dollars
($80.00) per article when purchased by such contractors or subcontractors. Contractors and subcon-
tractors may obtain Contractor's and Subcontractor's Certificate, Form E-580, from the Sales and Use
Tax Division, North Carolina Department of Revenue, to be executed by them and furnished to their
vendors in connection with such purchases as the vendor's authority to apply the one percent rate of
tax thereto. The following items when sold to tire recappers for use exclusively in the recapping process
are considered to be mill machinery or mill machinery parts and accessories within the meaning of the
Sales and Use Tax Article:

( 1 ) wire brushes;

(2) mold lube;

(3) curing tubes and rims;

(4) molds and matrices;

(5) buffing equipment;

(6) buffing discs;

(7) buffing rasps;

(8) rasp teeth;

(9) crayon for marking tires;

( 10) tire trimmers;

(11) boilers;

(12) tire handling equipment used exclusively between the beginning and ending steps of the
recapping process;

(13) inspection spreaders used exclusively to inspect casing being recapped;

(14) spinners used for applying cement used on casings being recapped;

(15) pre-condensing tanks for air lines used for applying cement, dusting bulled casings, and inflating
curing tubes;

(16) casing balancers used exclusively in balancing casing to be recapped;

(17) tread builders used to apply tread rubber to casmg being recapped;

(18) air compressors used exclusively in retreading or recappmg process;

(19) dust collectors;

(20) knives, stitchers, rollers, shears, awls, splicing tools, etc., used to perform work on the ingredient
material or the manufactured product;

(21 ) thermometers, pyrometers, and durometers used in testing mold heat and cure hardness of the
rubber used in the recapping process;

725 7:7 NORTH CAROLINA REGISTER July I, 1992

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(22) bagging and debagging equipment;

(23) sprayers used exclusively in the recapping process;

(24) matrix loaders;

(25) steam traps and valves used in steam lines for curing molds;

(26) mold cleaners.

(d) The following are examples of items which are subject to the four percent (three percent until July
16, 1991) state and any applicable local sales or use tax when sold to tire recappers for use or con-
sumption:

(1) motor vehicle jacks;

(2) tire tools not used between the beginning and ending recapping processes;

(3) balancing machinery used after recapping process is completed;

(4) equipment used to remove tires from the rim before the recapping process begins;

(5) administrative equipment such as office supplies, file cabinets and other office equipment;

(6) cleaning compound for janitorial and sanitary purposes;

(7) uniforms for employees;

(8) advertising materials;

(9) lubricants, repair parts and accessories for motor vehicles;

(10) inspection bags;

(11) gloves.

(e) The lists in (c) and (d) of this Rule are not intended to be exclusive but are for illustrative purposes
only. If there is any question as to the tax status of any item not on the lists, it may be submitted to
the Secretary of Revenue for a determination as to the applicable rate of tax.

History Note: Statutory Authority G.S. 105-164.4; 105-164.6; 105-262; 105-264;
Eff. February I, 1976;
Amended Eff. June 1. 1992; October 1, 1991; May J, 1985; May 11, 1979.

.1906 SCRAP TIRE DISPOSAL FEE

(a) Between January 1, 1990 and June 30, 1991, a scrap tire disposal fee of one percent is levied on
the sales price of each retail sale of a new motor vehicle tire. The fee is not due on tires sold for any
implement of husbandry, farm tractor, road construction or maintenance machinery or equipment,
special mobile equipment, any vehicle designed pnmarily for use in work off the highway, or a manu-
factured home. "Sales price" includes the amount of any federal manufacturer's excise tax imposed
on such tires. The one percent fee is imposed on tire retailers' net taxable sales of new motor vehicle
tires and it is to be collected and paid in the same manner as the State sales tax. However, the fee is
not a part of the tax base on which the sales tax is to be computed. It does not apply to:

(1) sales of recapped tires,

(2) receipts from the lease or rental of tires,

(3) sales of tires for resale,

(4) the sale of used motor vehicle tires,

(5) factory installed tires which after use are replaced with new tires and then sold at retail,

(6) tires which are sold to motor vehicle dealers to be mounted on and sold as a part of a new or
used motor vehicle, or

(7) sales to the United States Government or any agency thereof.

(b) Motor vehicle tires purchased outside of North Carolina for use in this State will be subject to
the one percent fee on the cost price of each new tire to be paid in the same manner as the State use
tax under G.S. 105-164.6. Every person located outside this State engaged in business in this State is
required to register with the Department and collect and remit the scrap tire disposal fee on all retail
sales of new motor vehicle tires sold or delivered for storage, use or consumption m this State. The
exemptions and exclusions under the Sales and Use Tax Law and the "storage and use exclusion," as
well as the lower rates of tax imposed by the Sales and Use Tax Law, do not apply to this fee levy.
The refund provisions of G.S. 105-164. 14(a), (b) and (c) do not apply to this fee levy.

(c) The fee levy constitutes a separate collection program from sales tax for the Sales and Use Tax
Division and is to be reported on the Waste Tire Disposal Fee Report, Form E-500 G, which is pro-
vided by the Department.

(d) Every person engaged in the business of selling new motor vehicle tires at retail or making pur-
chases subject to the scrap tire use fee and whose total scrap tire fee liability is consistently less than
twenty thousand dollars ($20,000) per month must file on or before the 15th day of each calendar
month a report for the previous month and remit the taxes due with such report. When the total

7:7 NORTH CAROLINA REGISTER July I, 1992 726

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amount of the scrap tire disposal fee for which a taxpayer is liable is consistently less than twenty-five
dollars ($25.00) per month, such taxpayer may file a quarterly return with remittance of the tax on or
before the 15th day of January, April, July and October of each year for the preceding three months'
period upon making application to the Secretary to use such basis of reporting. A report must be filed
for each reporting period. Reports for the periods in which no sales are made should be marked "no
sales." A taxpayer who is consistently liable for at least twenty thousand dollars ($20,000) per month
in scrap tire disposal fees shall, as directed by the Secretary of Revenue, file a return on a semimonthly
basis. These returns are due within ten days after the end of each semimonthly period. The semi-
monthly reporting periods are the first through the 15th day of each month and the 16th through the
last day of each month. In determining the amount of tax due from a taxpayer for a reporting period,
the Secretary shall consider the total amount due from all places of business owned or operated by the
same person as the amount due for that period.

History Sole: Statutory Authority G. S. 105-262; 105-264; 130A-309.55; 130A-309.56;
Eff. October I, 1990;
Amended Eff. June I. 1992.

.1907 SCRAP TIRE DISPOSAL TAX

(a) Effective July 1, 1991, the Scrap Tire Disposal Fee was moved to Article 5B of Chapter 105 of
the General Statutes and became the Scrap Tire Disposal Tax. The definitions contained in G.S.
105-164.3 of the Sales and Use Tax Statute are applicable to Article 5B except that the term "sale" does
not include "lease or rental." The exemption for tires leased or rented was removed effective July 1,
1991. Under the amended statute, the taxable event for tires that are purchased for the purpose of lease
or rental occurs at the time the tires are purchased and the scrap tire tax is due at that time. The re-
ceipts from the lease or rental of tires are not subject to the scrap tire tax but they are subject to the
sales or use tax. The levy was expanded and, effective July 1. 1991, the one percent tax also applies
to the retail sales of new tires for construction equipment, agricultural and industrial equipment, air-
craft, and new tires that are sold to be placed on vehicles offered for sale, lease or rental. Sales of these
tires are to be reported with sales of new motor vehicle tires on line 1 of the Scrap Tire Disposal Tax
Report, Form E-500G. The scrap tire tax shall be computed on the selling price of the tire including
the federal excise tax but excluding the sales tax. Tires that continue to be exempt from the one percent
Scrap Tire Disposal Tax are bicycle tires and other tires for vehicles propelled by human power.

(b) Purchases of new tires from outside North Carolina for storage, use or consumption in North
Carolina or to be placed on a vehicle offered for sale, lease or rental are subject to the one percent rate
on the cost price of each new tire. These tire purchases are to be reported on line 2 of the Scrap Tire
Disposal Tax Report. The exemptions in G.S. 105-164.13 and the refunds authorized by G.S.
105-164.14 for various groups and organizations do not apply to the taxes imposed by this Article.

(c) The Scrap Tire Disposal Tax is not to be reported on a tire vendor's sales and use tax report but
it is to be reported on the Scrap Tire Disposal Tax Report, Form F-500G. Taxpayers who are making
sales or purchases of tires that are subject to the tax in accordance with the above information must
register for this purpose.

History Note: Statutory Authority G. S. 105-262; 105-264; 130A-309.55; 130A-309.56;
Eff. October 1, 1991;
Amended Eff. June I, 1992.

SECTION .2400 - VETERINARIANS

.2402 SALES BY VETERINARIANS

(a) Sales of drugs and medicines on the written prescription of a veterinarian, whether from an in-
ventory of medicines and drugs maintained by the veterinarian or whether by or through an inde-
pendent pharmacy or drug store, are exempt from sales or use tax. The terms "medicines" and
"drugs" shall mean medicines in the generally accepted sense of the term and also includes remedies
and tonics for internal use, vaccines, vitamins, ointments, liniments, antiseptics and other medicinal
substances having preventive and curative properties in the prevention, treatment or cure of disease in
animals.

(b) When a veterinarian maintains an inventory of medicines and drugs from which sales are made
pursuant to a veterinarian's written prescription, to persons who actually receive the medicines or drugs

727 7:7 NORTH CAROLINA REGISTER July 1,1992

FINAL RULES

for subsequent administration, such sales are exempt from sales or use tax provided adequate records
are maintained which clearly segregate such prescription sales. In the absence of a written prescription,
a copy of which is kept on file, veterinarians making such prescription sales must clearly show on the
patients' medical records, cards or charts the diagnosis of the illness or ailment, the kind and amount
of medicines or drugs prescribed, the sales price of such medicines or drugs and the frequency with
which such medicines or drugs are to be administered to the patient. Records must be maintained that
show charges to customers for professional services and such records must be kept in a manner so that
such prescription sales of medicines and drugs can be related or traced to the patients' medical records,
cards or charts. The foregoing does not apply to medicines or drugs that are administered by the
veterinarian to the patient in connection with the treatment of patients since veterinarians are the users
of any such medicines or drugs so administered.

(c) Sales of medicines or drugs by a pharmacy on the written prescription of a veterinarian are exempt
from sales or use tax. Sales of medicines and drugs by a pharmacy pursuant to a veterinarian's tele-
phone (oral) prescription are exempt from sales or use tax provided the prescription is reduced to
writing, signed by the pharmacist and filed in the same manner as an original written prescription.
Medicines or drugs sold pursuant to the refilling of a veterinarian's prescription are likewise exempt
from tax. Vendors making sales of medicines or drugs pursuant to a veterinarian's prescription or re-
filling the same must keep sales records which will clearly segregate such prescription sales. All original
prescriptions must be filed and kept available for inspection by the Secretary of Revenue or her au-
thorized agent.

(d) Veterinarians who maintain an inventory for the purpose of making sales of medicines, drugs, flea
powder, soap, pet food, dog collars and similar items at retail must register with the Department and
collect and remit the applicable tax on such sales. A veterinarian who uses tangible personal property
in rendering professional services and also makes sales of the same type property may, in connection
with such purchases, furnish Certificates of Resale, Form E-590, to his vendors. The veterinarian is
then liable for remitting the applicable use tax on the property which is used and the applicable sales
tax on sales of such property to users or consumers.

History Note: Statutory Authority G.S. 105-164.4: 105-164.6: 105-262;
Eff. February 1 , 1976;
Amended Eff. June 1, 1992; August 1, 1986; May 11, 1979.

SECTION .2600 - LIABILITY OF CONTRACTORS: USE TAX ON EQUIPMENT BROUGHT

INTO STATE: BUILDING MATERIALS

.2602 CONTRACTORS: SUBCONTRACTORS: RETAILER-CONTRACTORS

(a) Contractors are deemed to be consumers of tangible personal property which they use in fulfilling
contracts and, as such, are liable for payment of the four percent (three percent until July 16, 1991) state
and any applicable local sales or use tax on such property. When a contractor or a subcontractor
makes taxable purchases of tangible personal property from suppliers outside this State who charge the
North Carolina four percent state and any applicable local sales or use tax thereon or from suppliers
in this State, they should remit the tax on such purchases to their suppliers. When a contractor or
subcontractor makes taxable purchases of tangible personal property for use in this State from a sup-
plier outside this State who does not collect the North Carolina four percent state and any applicable
local sales or use tax thereon, such contractor or subcontractor must remit the tax directly to the de-
partment. Where the purchaser is a contractor, the contractor and owner shall be jointly and severally
liable for said tax, but the liability of the owner shall be deemed satisfied if before final settlement be-
tween them the contractor furnishes to the owner an affidavit certifying that said tax has been paid.
Where the purchaser is a subcontractor, the contractor and subcontractor shall be jointly and severally
liable for said tax, but the liability of the contractor shall be deemed satisfied if before final settlement
between them the subcontractor furnishes the contractor an affidavit certifying that said tax has been
paid. The liability of the subcontractor for such tax does not extend to the property owner.

(b) The term retailer-contractor shall mean any person who engages in the business of selling building
materials, supplies, equipment, and fixtures at retail and, in addition to such business, enters into con-
tracts for constructing, building, erecting, altering or repairing buildings or other structures, and for the
installation of equipment and fixtures to buildings and, in the performance of such contracts, consumes
or uses such materials or merchandise. When a retailer-contractor as herein defined makes purchases
of the above named tangible personal property, a part of which he will use in performing contracts and

7:7 NORTH CAROLINA REGISTER July I 1992 72S

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a part of which he will sell at retail, the retailer-contractor should furnish his supplier a properly exe-
cuted certificate of resale. The supplier should keep the executed certificate for his records as his au-
thority for not charging tax on the transaction. The retailer-contractor then becomes liable for
remitting, directly to the department, tax on the sales price of any tangible personal property sold at
retail, and tax on the cost price of any tangible personal property used in the performance of a contract.

(c) Contractors are required to remit use tax at the applicable rate on the storage or use of motor
vehicles, machines, machinery, tools and other equipment brought into this state for use in construction
or repair work. The tax is to be applied and computed in the manner set forth in 17 NCAC 7B .2601.

(d) Sales to contractors and subcontractors purchasing mill machinery or mill machinery" parts and
accessories for use by them in the performance of contracts with manufacturing industries and plants
and sales to subcontractors purchasing mill machinery' or mill machinery parts and accessories for use
by them in the performance of contracts encompassed in such contracts with manufacturing industries
and plants are subject to the one percent rate of tax, with a maximum tax of eighty dollars ($80.00)
per article where applicable. Such mill machinery or mill machinery parts and accessories must be for
use by a manufacturing industry or plant in the production process, as the term "production" is defined
in 17 NCAC 7B .0202(a)(1), to qualify for the one percent rate of tax with a maximum tax of eighty
dollars ($80.00) per article when purchased by such contractors or subcontractors. Contractors and
subcontractors may obtain Contractor's and Subcontractor's Certificate, Form E-580, from the Sales
and Use Tax Division, North Carolina Department of Revenue, to be executed by them and furnished
to their vendors in connection with such purchases as the vendors' authority to apply the one percent
rate of tax thereto.

(e) Construction materials purchased or sold on and after July 16, 1991, (the effective date of the
increase in the state tax rate to four percent) to fulfill a lump-sum or unit price contract entered into
or awarded before July 16. 1991, or entered into or awarded pursuant to a bid made before July 16,
1991 . will continue to be taxable at the three percent state rate of tax and the local tax of two percent.
Form E-5S9, Affidavit to Fxempt Contractors From the Additional One Percent State Tax Effective
July 16, 1991, must be executed by the contractor or subcontractor to obtain the three percent state
rate.

History Note: Statutory Authority G.S. 105-164.4: 105-164.6: 105-262: 105-264;
Eff February I. 1976;
Amended Eff. June I. 1992; October I. 1991: February 8, 1981; May II, 1979.

.2611 BUILDING MATERIALS

(a) All building materials, supplies, fixtures and equipment of even" kind and description which be-
come a part of or are annexed to any building or other structure are subject to the four percent (three
percent until July 16, 1991) state and any applicable local sales or use tax, except for the reduced rates
and exemptions descnbed below. Vendors of such items are required to register and to collect and re-
mit the tax on their sales to contractors and other users or consumers.

(b) If the contractor purchases from a vendor outside the state any building materials, supplies, fix-
tures or equipment for use in the construction, erection, alteration or repair of a building or other
structure in this state and the vendor does not collect the tax thereon, such contractor must remit the
use tax directly to the department. The Sales and Use Tax Law provides that in such cases the tax is
a joint liability of the contractor and the owner. The liability of the owner will be satisfied if he obtains
from the contractor before settlement an affidavit that the tax due has been paid.

(c) Construction materials purchased or sold on and after July 16. 1991, (the effective date of the
increase in the state tax rate to four percent) to fulfill a lump-sum or unit price contract entered into
or awarded before July 16. 1991, or entered into or awarded pursuant to a bid made before July 16,
1991, will continue to be taxable at the three percent state rate of tax and the local tax of two percent.
Form E-589, Affidavit to Exempt Contractors From the Additional One Percent State Tax Effective
July 16, 1991, must be executed by the contractor or subcontractor to obtain the three percent state
rate.

(d) Sales to contractors and subcontractors purchasing mill machinery or mill machinery parts and
accessories for use by them in the performance of contracts with manufacturing industries and plants
and sales to subcontractors purchasing mill machinery or mill machinery parts and accessories for use
by them in the performance of contracts encompassed in such contracts with manufacturing industries
and plants are subject to the one percent rate of tax. with a maximum tax of eighty dollars ($80.00)
per article where applicable. Such mill machinery or mill machinery parts and accessories must be for
use by a manufacturing industry or plant m the production process, as the term "production" is defined

~29 7:7 NORTH CAROLINA REGISTER July 1, 1992

FINAL RULES

in 17 NCAC 7B .0202(a)(1), to qualify for the one percent rate of tax with a maximum tax of eighty
dollars ($80.00) per article when purchased by such contractors or subcontractors. Contractors and
subcontractors may obtain Contractor's and Subcontractor's Certificate, Form E-580, from the Sales
and Use Tax Division, North Carolina Department of Revenue, to be executed by them and furnished
to their vendors in connection with such purchases as the vendor's authority to apply the one percent
rate of tax thereto.

(e) Sales to commercial livestock and poultry farmers of materials to be used exclusively in the con-
struction, repair or improvement of any enclosure or structure specifically designed, constructed, and
used for commercial purposes for housing, raising, or feeding livestock and poultry or for housing
equipment necessary for these activities, including work space used solely for these commercial activ-
ities, are exempt from sales and use taxes. Likewise, sales of materials for the above described uses to
contractors performing contracts with commercial livestock and poultry farmers and subcontractors
performing contracts with general contractors who have contracts with commercial livestock and
poultry farmers shall be exempt. The exemption from tax extends only to building materials, as such,
which are used in the construction, repair or improvement of such enclosures or structures and which
become a part of such enclosures or structures. The exemption does not extend to sales of equipment
and machinery used to equip such enclosures or structures prior to September 1, 1987. Effective Sep-
tember 1, 1987, the exemption was expanded to include sales of commercially manufactured swine,
livestock, and poultry facilities to be used for commercial purposes for housing, raising, or feeding of
swine, livestock, or poultry or for housing equipment necessary for these commercial activities; building
materials, supplies, fixtures, and equipment to be used in the construction, repair, or improvement and
that become a part of an enclosure or structure specifically designed, constructed and used for such
above commercial purposes; and commercially manufactured swine, livestock, and poultry equipment,
parts and accessories therefor placed or installed in or affixed to such facilities, enclosure, or structures.

(f) For the purpose of this Rule, the words "swine, livestock and poultry" include swine, cattle,
horses, mules, sheep, chickens, turkeys and other similar domestic animals and fowl usually held or
produced on a farm for commercial purposes. The word "commercial" shall mean "held or produced
for income or profit." It does not include one who merely produces swine, livestock or poultry for
one's persona] use or consumption and not for sale. Commercial swine, livestock or poultry farmers,
and contractors performing contracts with commercial swine, livestock or poultry farmers and sub-
contractors performing contracts with general contractors who contract with commercial swine, live-
stock or poultry farmers may obtain Commercial Swine, Livestock and Poultry Farmers' Certificate,
Form E-599S, from the Sales and Use Tax Division, North Carolina Department of Revenue, or any
of its field offices, to be executed by them and furnished to their vendors in connection with such pur-
chases as the vendor's authority to exempt such purchases from sales and use taxes.

History Note: Statutory Authority G.S. 10S-164A; 105-164.6; 105-262; 105-264;
Eff. February 1, 1976;
Amended Eff. June I, 1992; October 1, 1991; February I, I9SS; May II, 1979.

SECTION .2700 - DENTISTS: DENTAL LABORATORIES AND DENTAL SUPPLY HOUSES

.2702 SALES TO DENTAL LABORATORIES

(a) Sales to dental laboratories of tangible personal property which becomes a component part of false
teeth, dentures or artificial restoration of teeth being fabricated by such laboratories are not subject to
sales or use tax.

(b) Sales to dental laboratories of machinery and equipment, and accessories thereto for use directly
in the fabricating of false teeth are subject to the one percent rate of sales or use tax with a maximum
tax of eighty dollars ($80.00) per article. Sales to contractors and subcontractors purchasing such ma-
chinery and equipment or parts and accessories thereto for use by them in the performance of contracts
with dental laboratories and sales to subcontractors of such machinery and equipment or parts and
accessories thereto for use by them in the performance of contracts encompassed in such contracts with
dental laboratories are taxable at the one percent rate of sales or use tax, subject to a maximum tax of
eighty dollars ($80.00) per article where applicable when the machinery and equipment or parts and
accessories thereto are used by such dental laboratories directly in the fabricating of false teeth. Con-
tractors and subcontractors may obtain Contractor's and Subcontractor's Certificate, Form E-580, from
the Sales and Use Tax Division, North Carolina Department of Revenue, to be executed by them and

7:7 NORTH CAROLINA REGISTER July I, 1992 730

FINAL RULES

furnished to their vendors in connection with such purchases as the vendor's authority to apply the one
percent rate of tax. thereto.

(c) Sales to dental laboratories of tangible personal property which does not become a component
part of false teeth, or which is not used directly in the fabricating of the false teeth are subject to the four
percent (three percent until July 16, 1991) state and any applicable local sales or use tax.

History Sote: Statutory Authority G.S. 105-1644; 105-164.6; 105-164.13; 105-262; 105-264;
Eff. February 1, 1976;
Amended Eff. June I, 1992; October 1, 1991; January I, 1982; May 11, 1979.

SECTION .2800 - FLORISTS: NURSERYMEN: GREENHOUSE OPERATORS AND

FARMERS

.2801 FLORISTS: NURSERYMEN: GREENHOUSE OPERATORS AND FARMERS

(a) Retail sales of wreaths, bouquets and similar items are subject to the four percent (three percent
until July 16, 1991) state and any applicable local sales or use tax.

(b) Retail sales of flowers, potted plants, shrubbery and similar nursery stock and retail sales of fruits,
vegetables and other farm products are subject to the four percent (three percent until July 16, 1991)
state and any applicable local sales or use tax unless the product in question is a product of the farm
and is sold in its original state by the producer of the product who is not primarily a retail merchant
at the location where the product is sold.

(c) For the purpose of the exemption afforded by G.S. 105-164.13(4.2), nurserymen and greenhouse
operators are considered to be farmers. Nursery stock which is not sold during the season in which it
was purchased by the nurserymen, greenhouse operators and other farmers but is retained until the next
season and growth is added thereto by virtue of such retention is considered to be a product of the farm
and is exempt from sales and use taxes when sold by such nurserymen, greenhouse operators or farmers
who are not selling primarily as retail merchants.

(d) Nurserymen, greenhouse operators and other types of farmers that make retail sales of farm pro-
ducts that they have produced which are in their original state are not liable for collecting and remitting
sales tax on these sales unless they are selling primanly in their capacity as retail merchants. Such
vendors are selling primarily as producers when the total dollar sales volume of their produced farm
products in the original state regularly exceeds fifty percent of the total dollar sales volume of their
purchased products and their produced products. Such vendors are selling primarily in their capacity
as retail merchants when their total dollar sales volume of purchased products regularly exceeds fifty
percent of the total dollar sales volume of their purchased and produced products. Such classification
shall remain in effect until either category - of sales on a regular basis has changed to another principal
type. If such producer-vendors operate more than one location, the preceding is applicable to the total
dollar sales volume of each location separately. The total dollar sales volume to be used in determining
the classification of "producer" or "retail merchant" shall include all sales of tangible personal property
without regard to any items or sales that might otherwise be exempt from tax by the Sales and Use
Tax Statutes.

(e) If such vendors are not classified primarily as retail merchants on the basis of the total dollar sales
volume, sales of their produced products in the original state are exempt from tax; however, retail sales
of any farm products or any other taxable merchandise acquired by purchase are subject to any appli-
cable tax. If such vendors are classified primarily as retail merchants on the basis of the total dollar sales
volume, they shall be liable for tax accordingly; i.e., all retail sales of both types of products shall be
subject to the tax unless specific sales are statutorily exempt from tax.

(f) When vendors who are not primarily retail merchants make sales of farm products produced by
them and products acquired by purchase, separate records must be maintained of sales of products
produced by them. Records of purchased products, as well as sales thereof, must be kept and main-
tained in a manner that can be accurately and conveniently checked by the agents of the Secretary of
Revenue; otherwise, all sales are subject to the tax.

(g) Producers making taxable sales must register with the Department of Revenue for the purpose
of collecting and remitting the tax due thereon.

(h) When nurserymen, greenhouse operators, florists or other persons make taxable sales of shrub-
bery, young trees or similar items, and as a part of the transaction transplant them to the land of the
purchaser for a lump sum or a Hat rate, the entire amount of the transaction is subject to the four
percent (three percent until July 16, 1991) state and any applicable local sales or use tax unless such

731 7:7 NORTH CAROLINA REGISTER July 1, 1992

FINAL RULES

vendors segregate on the invoice that portion of the charge which is for the property sold and that
portion of the charge which is for transplanting.

(i) For the purpose of the exemption afforded by G.S. 105-164.13(4.2), nurserymen and greenhouse
operators are considered to be farmers; therefore, the fact that they may be selling tangible personal
property primarily as a retailer and not as a producer does not preclude certain of their purchases of
tangible personal property for use from the one percent state rate of tax with a maximum tax of eighty
dollars ($80.00) per article levied pursuant to G.S. 105-164.4(a)(ld)a. G.S. 105-1644(a)(ld)a. levies the
above state rate of tax on sales to farmers of machines and machinery and parts therefor and accessories
thereto for use by them in planting, cultivating, harvesting or curing farm crops. Regulation 17 NCAC
7B .1101 provides additional information regarding the above levy.

(j) Effective September 1, 1990, G.S. 105-164.13(6) was repealed removing the exemption from tax
for retail sales of ice. G.S. 105-164. 13(4b) was rewritten to add an exemption for ice sold to be used
to preserve agricultural, aquacultural and commercial fishery' products until the products are sold at
retail. Sales of ice for resale continue to be exempt from tax.

History Sole: Statutory Authority G.S. 105-164.4; 105-164.6; 105-164.13; 105-262;
Eff. February 1, 1976;
Amended Eff. June 1, 1992; October 1, 1991; March I. 1987; June I, 1985.

SECTION .2900 - VENDING MACHINES

.2901 SALES THROUGH VENDING MACHINES

(a) Any person who makes sales of tangible personal property by means of vending machines is re-
quired to register with the Department of Revenue and pay sales tax on the sales price of tangible
personal property in excess of one cent per sale. One cent sales through vending machines are exempt
from sales tax when made by the owner or lessee of the vending machines. Effective July 1. 1989, the
sales price of tangible personal property sold through coin-operated vending machines, other than
closed container soft drinks subject to the excise tax under Article 2B of the Revenue Act or tobacco
products, is considered to be 50 percent of the total amount for which the property is sold through the
vending machines. All bottled soft drinks containing 35 percent or more of natural fruit or vegetable
juice and all bottled natural milk drinks containing 35 percent or more natural liquid milk are exempt
from the excise tax imposed by the Soft Drink Tax Article, but the exemption does not apply to any
vegetable or fruit dnnk to which has been added any coloring, artificial flavoring or preservative. Ef-
fective October 1, 1991, all bottled soft drinks containing 100 percent natural fruit or vegetable juice
without added ingredients of any kind other than vitamins and that are registered with the Soft Drink
Excise Tax L'nit, are exempt from the excise tax imposed by the Soft Drink Tax Article. This ex-
emption does not apply to any fruit or vegetable drink to which has been added any sugar, salt,
preservatives, artificial flavoring, coloring, and carbonation. The receipts from sales of these items ex-
empt from the soft drink tax will be subject to the tax on 50 percent of the total amount for which these
items are sold through vendine machines. Records must be kept to support such exempt sales as re-
quired by G.S. 105-164.22 and G.S. 105-164.24.

(b) If a person operates a number of vending machines from which taxable sales are made at various
locations in this state, one retailer's license may be held by such person at his principal place of business
and the tax may be accounted for in one return reflecting the total gross receipts derived from sales
through all vending machines operated in this state.

History Note: Statutory Authority G.S. 105-164.4; 105-164.13; 105-262;
Eff. February 1. 1976;
Amended Eff. June 1. 1992: July I, 1989.

SECTION .3100 RADIO AND TELEVISION STATIONS: MOTION PICTURE THEATRES

.310-4 BROADCASTING ACCESSORIES

Sales of slide or film projectors, screens, photographic supplies and equipment, including cameras,
bulbs, film, blank videotape cassettes, chemicals, paper and other photographic developing equipment
to television companies operating under the regulation and supervision of the Federal Communications

7:7 NORTH CAROLINA REGISTER July I, 1992 712

FINAL RULES

Commission are subject to the one percent rate of tax with an eighty dollar ($80.00) maximum tax per
article when such items are used in producing pictures and similar material used in the programming
of the television station. This Rule has no application to sales of the above items to amateur or
commercial photographers.

History Note: Statutory Authority G.S. 105-164.4; 105-164.6; 105-262;
Eff. February 1, 1976;
Amended Eff. June 1, 1992.

.3107 MOTION PICTURE PRODUCTION FIRMS

(a) Sales to motion picture production firms of cameras, film and props or building materials used
in the construction of sets which are used in the actual filming of movies for sale, lease or rental are
subject to the one percent rate of tax with a maximum tax of eighty dollars ($80.00) per article. The
sale of chemicals and equipment used to develop and edit film which is used to produce release prints
qualifies for the one percent rate of tax.

(b) Sales of machinery and equipment and other property to motion picture production firms for use
in receiving tangible personal property and other activities such as raw materials storage, finished goods
storage, distribution or administration is subject to the four percent (three percent until July 16, 1991)
state and any applicable local sales or use tax.

(ci The purchase of film by a movie production company which becomes a component part of release
prints that are actually produced and sold, leased or rented to its customers are exempt from sales and
use tax. Also, chemicals which are used to develop release prints that are for sale, lease or rental are
exempt from tax.

History Sole; Statutory Authority G.S. 105-164.4; 105-164.6; 105-262;
Eff. June 1, 1992.

SECTION .3200 - TELEPHONE AND TELEGRAPH COMPANIES

.3204 CELLULAR TELEPHONE COMPANIES

(aj Those firms known as cellular telephone companies, which are licensed by the Federal Commu-
nications Commission and which provide their customers; on a commercial basis, access to local tele-
communications company lines to make and receive telephonic quality communications by use of radio
frequencies come within the purview of the statutes and this Rule as they relate to the one percent rate
of tax on specified equipment. Sales to such firms of microwave transmitters and receivers, antennas,
radio channel units, and central office telecommunications equipment, switchboard or private branch
exchange equipment and prewritten computer programs used in providing telecommunications services
to subscribers are subject to the one percent sales or use tax with a maximum tax of eighty dollars
($80.00) per single article. Sales to such firms of towers to support antennas used to transmit and re-
ceive signals of microwave radios used in providing such telephonic quality communications are subject
to the one percent sales or use tax with a maximum tax of eighty dollars ($80.00). For the purpose
of applying the maximum tax. a tower is considered to be a single article only when the complete tower
is sold by the same vendor. Sales of antenna cable used in transmitting the radio signals from the
microwave antenna to the microwave transmitter or receiver are subject to the one percent rate of tax
with no maximum tax applicable thereto.

(b) The gross receipts derived by a cellular telephone company from providing intrastate, local, toll
or private telecommunications services, including basic service charges, system access charges and gen-
eral usage charges, are subject to the three percent or six and one-half percent sales tax as provided in
17 NCAC 7B .3201 (f). Sales or leases of radio telephone equipment to subscribers are subject to the
four percent (three percent until July 6, 1991) state and any applicable local sales or use taxes.

History Note: Statutory Authority G.S. 105-/64.4; 105-164.6; 105-262:
Eff. June I, 1992. '

SECTION .3300 - ORTHOPEDIC APPLIANCES

.3302 ITEMS NOT ORTHOPEDIC APPLIANCES

733 7:7 NORTH CAROLINA REGISTER July /, 1992

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Sales of therapeutic, prosthetic, or artificial devices, such as pulmonary respirators or medical beds,
that are designed for individual personal use to correct or alleviate physical illness, disease or incapacity
are exempt from sales and use tax when sold on the written prescription of a physician, dentist or other
professional person licensed to prescribe; however, this exemption does not apply to the sale of a motor
vehicle or to sales to persons not made pursuant to a written prescription of a physician, dentist of other
professional person licensed to prescribe. Vendors making sales of therapeutic, prosthetic, or artificial
devices pursuant to written prescriptions must keep sales records which clearly segregate such pre-
scription sales. All original prescriptions must be filed and kept available for inspection by the Secretary
of Revenue or her authorized agent. The items listed in this Rule are not orthopedic appliances within
the meaning of G.S. 105-164.13(12) and are subject to the four percent (three percent until July 16,
1991) state and any applicable local sales or use tax when sold to users or consumers in this state unless
sold pursuant to a written prescription as provided herein:

(1) athletic supporter;

(2) ball o foot cushions;

(3) bunion protector;

(4) bunion reducer;

(5) foot cushion;

(6) heel cushions;

(7) shoe insoles;

(8) toe flex;

(9) walk strate pads;

(10) wigs;

(11) heating pads;

(12) heat lamps;

(13) oxygen regulators (medical);

(14) oxygen tents;

(15) vaporizers.

History Note: Statutory Authority G.S. 105-164.4; 105-164.6; 105-262;
Eff. February 1, 1976;
Amended Eff. June I. 1992; October 1. 1991; February I, 1986.

SECTION .3400 - MEMORIAL STONE AND MONUMENT DEALERS AND

MANUFACTURERS

.3401 MEMORIAL STONE SALES

(a) Except as provided in Paragraph (b) of this Rule, sales of memorial stones to users or consumers
are subject to the four percent (three percent until July 16, 1991) state and any applicable local sales
or use tax. Where the seller of a memorial stone or monument agrees to install such stone or monu-
ment upon a foundation, a segregation must be made of materials used and installation charges in-
volved, on an invoice given to the customer at the time of the sale. The seller may deduct the
installation labor costs or services from the gross proceeds of the sale only when a segregation of the
billing is made to the customer; otherwise, the total charge is taxable.

(b) The first one thousand five hundred dollars ($1,500.00) of all funeral expenses, including gross
receipts from tangible personal property furnished and services rendered by funeral directors, morticians
and undertakers, or by monument and memorial stone dealers, shall be exempt from sales or use taxes.
The term "funeral expenses", as used in this Rule, shall include charges by monument or memorial
stone dealers for the sale and installation of memorial stones and monuments purchased by the estate
of a deceased person and allowed as a funeral expense. It shall also include charges by monument and
memorial stone dealers for the sale and installation of memorial stones and monuments purchased by
a family member or other person responsible for the funeral expenses within one year after the death
of the deceased person. The one thousand five hundred dollars ($1,500.00) exemption is applicable to
the total charge for the sale and installation of a memorial stone or monument notwithstanding that
the installation charge may be separately stated on the invoice at the time of the sale and in the vendor's
records. Vendors making sales of memorial stones and monuments or services subject to the one
thousand five hundred dollars ($1,500.00) exemption must keep sales invoices, books and other records
showing the name of the purchaser, the total sales price of the tangible personal property, the date of

7:7 NORTH CAROLINA REGISTER July I, 1992 734

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the sale, the date of the death of the deceased person and the total sales price of all tangible personal
property and services furnished.

History Sole: Statutory Authority G.S. 105-164.3 105-164.4; 105-262;
Eff. February 1, 1976;
Amended Eff. June 1, 1992; October 1, 1991; July I, 1990.

SEC HON .3500 - MACHINISTS: FOUNDRYMEN: AND PATTERN MAKERS

.3501 MACHINISTS: FOUNDRYMEN: PATTERN MAKERS

(a) Sales to users or consumers of dies, castings, patterns, tools, machinery and any other tangible
personal property made by machinists, foundrymen or pattern makers, and parts and other tangible
personal property fabricated and sold for use or consumption on or with such items of tangible personal
property, are subject to the four percent (three percent until July 16, 1991) state and any applicable
local sales or use tax unless such sales qualify for the one percent rate of tax under the provisions of
Paragraph (b) of this Rule or are wholly exempt from the tax under the provisions of Paragraph (c)
of this Rule.

(bj The following sales of any such tangible personal property are subject to the one percent rate of
tax with a maximum tax of eighty dollars ($80.00) per single article:

(1) Sales of molds, patterns or dies by machinists, foundrymen, pattern makers or others and any
other property classified as mill machinery, mill machinery parts and accessories to manufac-
turing industries and plants.

(2) Sales to contractors and subcontractors purchasing mill machinery or mill machinery parts and
accessories for use by them in the performance of contracts with manufacturing industries and
plants and sales to subcontractors purchasing miU machinery or mill machinery parts and ac-
cessories for use by them in the performance of contracts encompassed in such contracts with
manufacturing industries and plants. Such mill machinery or mill machinery parts and acces-
sories must be for use by a manufacturing industry or plant in the production process, as the
term "production" is defined in 17 NCAC 7B .0202(a)(1). to qualify for the one percent rate of
tax with a maximum of eighty dollars ($80.00) per article when purchased by such contractors
or subcontractors. Contractors and subcontractors may obtain Contractor's and Subcontrac-
tor's Certificate. Form E-580, from the Sales and Use Tax Division, North Carolina Department
of Revenue, to be executed by them and furnished to their vendors in connection with such
purchases as the vendor's authority to apply the one percent rate of tax thereto.

(3) Sales to farmers if such property is classified as farm machinery, or parts and accessories therefor,
under the provisions of 17 NCAC 7B .1100.

(4) Sales to commercial laundries, or pressing and dry cleaning establishments of machinery, or parts
and accessories therefor, for use by the vendee in the direct performance of the cleaning and
pressing service.

(5) Sales of any such machinery, or parts and accessories therefor, to freezer locker plants for use in
the direct operation of such plants.

( 1 ) Commercial fishermen for use by them in the commercial taking or catching of shrimp, crab,

oysters, clams, scallops and fish, both edible and nonedible.
(2) For use or consumption by or on ocean-going vessels plying the high seas in interstate or foreign

commerce in transporting freight or passengers for hire exclusively.

(d) The tax due hereunder shall be computed at the applicable rate on the full selling price of such
property, including charges for any services that go into the fabrication, manufacture or delivery thereof.

History Note: Statutory Authority G.S. 105-164.4; 105-164.6; 105-164.13: 105-262; 105-264;
Eff. February 1. 1Q~6;
Amended Eff June 1. 1992: October 1. 1991; January I. 19S2: May 11, 1979.

SECTION .3600 - FUNERAL EXPENSES

.3601 FUNERAL EXPENSES

'35 7:7 NORTH CAROLINA REGISTER July /, 1992

FINAL RULES

(a) Except as otherwise provided in Paragraph (b) of this Rule, all funeral expenses, including gross
receipts from tangible personal property furnished or services rendered by funeral directors, morticians
or undertakers arc subject to the four percent (three percent until July 16, 1991) state and any applicable
local sales or use tax. Where coffins, caskets, vaults and memorial stones or monuments are provided
by the same funeral home and a separate charge is paid for services, the provisions of this Rule shall
apply to the total for both. For additional information regarding the sale and installation of memorial
stones and monuments, see 17 NCAC 7B .3400.

(b) The first one thousand five hundred dollars ($1,500) of the charge for such tangible personal
property furnished or services rendered, or both, shall not be subject to the tax. In addition to the
statutory exclusion, the following charges may also be excluded from taxable receipts provided such
charges are separately and accurately identified in the funeral directors' records: those services which
have been taxed pursuant to G.S. 105-164.4(4); those services performed by any beautician,
cosmetologist, hairdresser or barber employed by or at the specific direction of the family or personal
representative of the deceased; burial permit fees for interment in church cemeteries; stone deposits
advanced to city and church cemeteries to guarantee the erection of a grave stone within a given time;
transportation charges by common carriers for transporting the deceased from the place of death to the
place of interment; honorariums; ambulance service in cases of final illness where the bill was not paid
prior to death and is subsequently added to the funeral bill; cemetery lots; cash advances; grave opening
fees; charges for telephone calls to friends and relatives of the deceased for the convenience of and at
the request of the family of the deceased when billed separately to the family; charges for death certif-
icates procured by or at the specific direction of the family or personal representative of a deceased
person; and amounts paid directly to the funeral director by agencies of the federal government except
death benefit payments by the Social Security Administration which require the authorization of the
surviving

(c) Sales to funeral directors, morticians and undertakers of graveside equipment, embalming fluid,
cosmetics, disinfectants, chairs, flower racks, casket trucks and other supplies or equipment for use in
conducting their businesses are subject to the four percent (three percent until July 16, 1991) state and
any applicable local sales or use tax.

History Note: Statutory Authority G.S. 105-164.4: 105-164.6; 105-164.13; 105-262;
Eff. February I, 1976;
Amended Eff. June I. 1992; October 1. 1991; February 1, 1987; February 1, 1986.

SECTION .4400 - LEASE OR REVEAL

.4403 MAINTENANCE OF LEASED PROPERTY

(a) Sales of tangible personal property to registered lessors or retailers for the purpose of lease or
rental exclusively are wholesale sales and not subject to tax provided properly executed certificates of
resale are furnished to the vendors of such property. Sales of lubricants, repair parts and accessories
to such lessors or retailers who use them to repair, recondition or maintain such lease or rental personal
property are also wholesale sales when properly executed certificates of resale are provided to vendors
of this type property. Lessors are responsible for payment of any applicable state and local tax on the
cost price of such items if they are used for a purpose other than repairing or maintaining leased or
rented property or if they are resold as such. Any tax due thereon is to be paid to the Secretary of
Revenue on the lessors' or retailers' sales and use tax returns.

(b) When the lessee purchases lubricants and repair parts to maintain tangible personal property being
leased or rented, the lessee is liable for payment of the four percent (three percent until July 16, 1991)
state and any applicable local sales or use tax on the cost price of such purchases to the vendors or to
the Secretary of Revenue. If a separate maintenance agreement for a fixed fee where no separate charge
is made for parts and labor is executed by the lessor and lessee whereby the lessor or the lessee agrees,
for a consideration separate from the lease payments, to maintain property being leased or rented,
purchases of repair parts and lubricants by either party are subject to the tax payable by the purchaser
thereof as described in this Rule.

History Note: Statutory Authority G.S. 105-164.4: 105-164.5; 105-164.6; 105-262;
Eff. February I, 1976;
Amended Eff June I. 1992; October 1, 1991; March I, 1984.

7:7 NORTH CAROLINA REGISTER July 1, 1992 736

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.4416 HIGHWAY USE TAX AND ALTERNATE GROSS RECEIPTS TAX

(a) G.S. 105-187.5 provides that, effective October 1, 1989, lessors of motor vehicles may elect to pay
the highway use tax to the Commission of Motor Vehicles when applying for a certificate of title for a
motor vehicle purchased by the retailer for lease or rental or may elect to collect and remit the tax to
the Secretary of Revenue on the lease or rental receipts derived therefrom. Any credit allowed by a
vendor in the lease agreement for the equity in a traded-in vehicle is considered a part of the gross re-
ceipts derived from the lease or rental of a motor vehicle and is subject to the highway use tax. Effective
April 23. 1991. G.S. 105-187 was amended by adding Section 1 1 which allows lessors of motor vehicles
the option of paying the highway use tax to the Commissioner of Motor Vehicles rather than the al-
ternate gross receipts tax to the Secretary of Revenue on motor vehicles held in their inventory for lease
prior to October 1, 19S9, and leased or rented on or after that date. To make the election allowed by
this Section, a retailer must complete a form provided by the Division of Motor Vehicles. That Divi-
sion will notify the Secretary of Revenue of a retailer who makes an election under this Section. If this
election is made, no credit will be allowed for any tax paid on the purchase or rental of a motor vehicle
under the Sales and Use Tax Law and for any tax paid on gross receipts under the Highway Use Tax
Act. The taxes collected under this Section will be credited to the General Fund.

(b) Effective October 1, 1989. the rate of highway use tax on motor vehicle lease or rental receipts
will be eight percent for the first 90 continuous days of lease or rental of a vehicle to the same person,
and the rate will reduce to three percent for the remainder of the continuous period dunng which the
vehicle is leased or rented to that person. The maximum tax of one thousand dollars ($1,000.00)
[effective July 1, 1993, the maximum tax will increase to one thousand five hundred dollars ($1,500.00)]
applicable to the sale of a motor vehicle applies when the vehicle is leased or rented to the same person
for more than 90 continuous days and the tax paid by a person from the fust day of such period applies
toward the maximum tax.

(c) Effective July 1, 1991, the Highway Use Tax Act was amended to define long-term and short-term
lease or rental. Long-term lease or rental means a written agreement to lease or rent property for at
least 365 continuous days to the same person. Short-term lease or rental is a lease for less than 365
continuous days. The rate of tax on the gross receipts from the short-term lease or rental of a motor
vehicle is eight percent and the tax rate on the gross receipts from the long-term lease or rental of a
motor vehicle is three percent. The maximum tax of one thousand dollars ($1,000.00) [effective July
1. 1993. the maximum tax will increase to one thousand five hundred dollars ($1,500.00)] applies to a
continuous lease or rental of a motor vehicle to the same person.

(d) A retailer who elects to pay tax to the Secretary of Revenue on the gross receipts from the lease
or rental of a motor vehicle mujst make this election when applying for a certificate of title for the ve-
hicle. To make the election, the retailer must complete a form provided by the Division of Motor
Vehicles. MVR 60S (Rev. 10-90). Once made, an election is irrevocable. The eight percent rate of tax
will be deposited in the General Fund. The three percent rate of tax will be deposited to the Highway
Trust fund, the two rates of tax on motor vehicle lease receipts are reported on the same forms which
will be provided to motor vehicle lessors by the Department of Revenue upon request.

History Note: Statutory- Authority G.S. 105-187.3; 105-187.4; 105-187.5; 105-187.6; 105-187.8;
105-187.9; 105-187.11; 105-262;
Eff. October 1, 1991;
Amended Eff. June 1. 1992.

SECTION .4500 - LAUNDRIES: DRV CLEANING PLANTS: LAUNDERETTES: LINEN
RENTALS: AND SOLICITORS FOR SUCH BLSINESSES

.4501 RECEIPTS OF LAUNDRIES: ETC.

(a) The gross receipts derived from the following are subject to the four percent (three percent until
July 16. 1991) state and any applicable local sales or use tax:

I 1 ) services rendered by pressing clubs, cleaning plants, hat blocking establishments, dry cleaning
plants, laundries, including wet or damp wash laundries and businesses known as launderettes
and launderalls, and all similar type businesses;

(2) the rental of clean linen, towels, wearing apparel and similar items:

(3) soliciting cleaning, pressing, hat blocking and laundry or linen rental business;

(4) rug cleaning services performed by persons operating mg cleaning plants or performed by any
of the businesses named in this Rule when the rug cleaning service is performed at the plant;

737 7:7 NORTH CAROLINA REGISTER July I, 1992

FINAL RULES

receipts from rug cleaning services performed at the customer's location by any of the businesses

included in this Rule are not subject to sales and use tax;
(5) charges for laundering or dry cleaning linen, towels, wearing apparel and similar items owned

by lessors which is held for lease or rental.
Effective July 1, 1988, receipts derived from coin or token-operated washing machines, extractors and
dryers are exempt from sales or use taxes. Retail sales of detergents, bleaches and other taxable items
of tangible personal property through vending machines continue to be subject to the four percent
(three percent until July 16, 1991) state and any applicable local sales or use tax.

(b) Charges by the businesses named in (a) of this Rule for alterations or storage of garments are not
a part of the gross receipts subject to tax when such charges are separately stated on their invoices and
in their records. When such charges are not separately stated, the total charge is subject to the four
percent (three percent until July 16, 1991) state and any applicable local sales or use tax. Sales of
thread, buttons, zippers, pockets, and other similar tangible personal property to such businesses for
use or consumption in making repairs and alterations to garments being laundered, cleaned or pressed
are subject to the four percent (three percent until July 16, 1991) state and any applicable local sales
or use tax.

(c) When in addition to the services named in Paragraph (a) of this Rule, the herein-named businesses
make retail sales of tangible personal property for which a separate charge is made, such sales are sub-
ject to the four percent (three percent until July 16, 1991) state and any applicable local sales tax. Any
charge for labor or services rendered in applying or installing such property are not subject to tax pro-
vided such charges are segregated from the charge for the tangible personal property sold on the invoice
given to the customer at the time of the sale and in the vendor's records; otherwise, the total amount
is subject to tax.

(d) Retailers of the services named in Paragraph (a) of this Rule are liable for the four percent (three
percent until July 16, 1991) state and any applicable local sales or use tax on the gross receipts derived
from their services; however, the tax does not apply to gross receipts from such services performed for
resale by retailers that pay the tax on their receipts from the services.

History Note: Statutory Authority G.S. 105-164.4; 105-262;
Eff. February 1. 1976;
Amended Eff June 1. 1992; October I, 1991; August 1, I9SS.

SECTION .4600 - MOTOR VEHICLES AND BOATS

.4601 SALES AND PURCHASES OE AUTOMOBILES AND OTHER MOTOR VEHICLES

(a) The Sales and Use Tax Article was amended, effective October 1, 1989, to provide an exemption
from sales and use taxes for sales of motor vehicles, the separate sales of a motor vehicle body and a
motor vehicle chassis when the body is to be mounted on the chassis, and the sale of a motor vehicle
body to be mounted by the manufacturer thereof on a motor vehicle chassis that temporarily enters the
state for that purpose. Effective July 1, 1991, motor vehicle bodies mounted upon motor vehicles
chassis that were titled and registered before the body was installed thereon are subject to the four
percent (three percent until July 16, 1991) state tax and any applicable local sales or use tax.
Prior to October 1, 1989, sales of motor vehicles, as defined in Paragraph (b) of this Rule, to users or
consumers were subject to the two percent rate of tax with a maximum tax of three hundred dollars
($300.00) applicable to the sale of any one motor vehicle. The tax was to be computed on the gross
sales price of the motor vehicle less any allowance for a motor vehicle taken in trade as a credit or part
payment on the sales price thereof. The gross sales price of the motor vehicle included any parts or
accessories installed thereon at the time of the sale, labor for installing such parts or accessories, freight
and any other charges for preparing the vehicle for sale. Parts or accessories sold separately from the
sale of a motor vehicle are subject to the four percent (three percent until July 16, 1991) state tax and
any applicable local sales or use tax; however, charges for labor to install such parts or accessories are
not subject to tax when separately stated on the customer's invoice and in the vendor's records.
Prior to October 1, 1989, separate sales of a new motor vehicle chassis and a new motor vehicle body
to be installed thereon, whether sold by the same or different retailers, were subject to the maximum
tax on sales of motor vehicles. Such sales are treated as a single sale. Retailers making sales of this
nature must retain in their permanent records evidence of the amount of tax paid on the purchase of
a new body or chassis and compute the amount of additional tax to be charged by determining the
difference between the tax already paid and the amount of tax due on the combined selling price of such

7:7 NORTH CAROLINA REGISTER July I, 1992 738

FINAL RULES

body and chassis subject to the maximum tax. When a new motor vehicle body was sold to be installed
on a used motor vehicle chassis, the tax was to be computed on the sales price of the new motor vehicle
body, subject to the maximum tax without regard to any tax previously paid on the used chassis.
Effective July 1, 1991, G.S. 105-164.13(32) was rewritten to exempt the sale of a motor vehicle body
to be mounted on a motor vehicle chassis when the certificate of title has not been issued for the chassis.
Motor vehicle bodies mounted upon motor vehicle chassis that have been previously titled and regis-
tered will be subject to the state rate of three percent or four percent plus the applicable local sales tax.
Prior to October 1, 1989, the lease receipts derived from the lease or rental of a motor vehicle to a user
or consumer in this state were subject to the two percent sales or use tax. The maximum tax of three
hundred dollars ($300.00) was applicable to the receipts derived from the lease or rental of a motor
vehicle for a stipulated period of time. Persons who leased or rented motor vehicles were to collect and
remit the tax on the separate retail sale of a motor vehicle in addition to the tax imposed on the lease
or rental of the motor vehicle.

(b) Motor Vehicle defmed: For the purposes of the Sales and Use Tax Article, the term motor ve-
hicle means a vehicle that is designed primarily for use upon the highways and is either self-propelled
or propelled by a self-propelled vehicle, but does not include:

(1) a moped as defined in G.S. 20-4.01(27)(dl);

(2) special mobile equipment as defmed in G.S. 20-4.01(44):

(3) a tow dollv that is exempt from motor vehicle title and reastration requirements under G.S.
20-51(10) or (11):

(4) a farm tractor or other implement of husbandry:

(5) a manufactured home: or

(6) road construction or road maintenance machinery or equipment.

(c) Special Mobile Equipment Defined: Fvcry truck, truck-tractor, mdustrial truck, trailer, or semi-
trailer on which have been permanently attached cranes, mills, well-boring apparatus, ditch digging
apparatus, air compressors, electric welders or any similar type apparatus or which have been converted
into living or office quarters, or other self-propelled vehicles which were onginally constructed in a
similar manner which are operated on the highway only for the purpose of getting to and from a non-
highway job and not for the transportation of persons or property or for hire. This shall also include
trucks on which special equipment has been mounted and used by the American Fegion or Shrine
Temples for parade purposes, trucks or vehicles privately owned on which fire-fighting equipment has
been mounted and which are used only for fire-fighting purposes, and vehicles on which are perma-
nently mounted feed mixers, grinders, and mills although there is also transported on the vehicle
molasses or other similar type feed additives for use in connection with the feed-mixing, grinding or
milling process.

(d) Prior to October 1, 1989, the sales or use tax was to be computed on the gross sales pnee of a
motor vehicle less any allowance for a motor vehicle taken in trade as a part of the consideration for
the purchased vehicle. Prior to October 1, 1989, sales of all motor vehicles accepted in trade or re-
possessed by vendors were subject to sales or use tax regardless of the fact that such motor vehicles
may have been acquired by trade or repossessed by vendors. Prior to October 1. 1989, when property,
other than motor vehicles, was taken in trade as a part of the consideration for a purchased vehicle, the
sales or use tax was to be computed and paid on the full gross sales price of the motor vehicle without
any deduction whatever on account of any trade-in credit or allowance. The sale of used property,
other than a motor vehicle, by the dealer who accepted same in trade would then be exempt from tax.
Effective October 1, 1989, motor vehicles are exempt from sales and use taxes and the sale of used
property, other than a motor vehicle, taken in trade as a part of the consideration for the purchased
vehicle is subject to sales tax. Repair parts withdrawn from inventory by a dealer and installed upon
such property for sale are not subject to the tax. Certificates of resale may be executed by registered
dealers when purchasing repair parts for resale or for use in reconditioning such property for sale.

(e) Prior to October 1. 19S9, sales of motor vehicles to a registered merchant for resale were not
subject to tax when supported by properly executed Resident and Nonresident Retail or Wholesale
Merchant's Certificate of Resale. Form E-590. or other evidence in writing adequate to support the
conclusion that he was registered with the Department of Revenue or in a taxing junsdiction outside
this state for sales and use tax purposes and that the property was being purchased for the purpose of
resale. Certificates of resale may also be executed by registered motor vehicle leasing firms when pur-
chasing motor vehicles which they will lease or rent to their customers since such firms must remit tax
on their lease or rental receipts. Prior to October 1, 1989, sales of motor vehicles to out-of-state mer-
chants who accept delivery of the vehicles in this state for resale in their respective states are not subject
to tax provided such merchants are registered for sales and use tax purposes in a taxing junsdiction

739 7:7 NORTH CAROLINA REGISTER July 1, 1992

FINAL RULES

outside this state and furnish the North Carolina merchant a properly completed certificate of resale.
Reference is made to 17 NCAC 7B .3201 for further information regarding sales to nonresident mer-
chants.
(f) Prior to October 1, 1989, sales of motor vehicles to nonresident purchasers which were delivered
to them in North Carolina for immediate transportation to and use in another state in which such ve-
hicles are required to be registered were not subject to sales tax. For the purpose of the exemption, the
term "immediate transportation to . . . another state" means to either drive or transport the vehicle
outside North Carolina en route to its state of registration within seventy-two hours after the purchase
thereof; however, purchases of motor vehicles by military personnel for use in North Carolina are tax-
able notwithstanding that such persons might have registered the motor vehicles in their home states.
The seller must have obtained from the purchaser and furnished to the Secretary of Revenue an Affi-
davit for Exemption of Motor Vehicle Sold for Immediate Transportation and Use Outside of North
Carolina, Form E-599B, stating the name and address of the purchaser, the state in which the vehicle
will be registered and operated, the make, model, and serial number of the vehicle, and such other in-
formation as the Secretary may require. The exemption was fully allowed when the affidavit was filed
with the seller's sales and use tax report for the month during which the sale was made and such report
was timely filed. When an affidavit concerning a sale of a motor vehicle to a nonresident purchaser
was not filed with the retailer's sales and use tax report for the month in which the sale of the vehicle
was made and the failure to file the affidavit is discovered on or after August 12, 1989, it shall be ac-
cepted if it is filed within 30 days after such discovery, but no refund shall be made of sales and use taxes
already paid. An affidavit filed within this 30-day period is subject to a penalty of 25 percent of the tax
applicable to the sales price of the motor vehicle. If the affidavit is submitted to the Secretary of Re-
venue after the end of this 30-day period, no exemption shall be allowed. The provisions of this Par-
agraph are not applicable to sales of motor vehicles which are subject to the highway use tax after
September 30, 1989.

History Sole: Statutory Authority G.S. 105-164.4; 105-164.5; 105-164.6; 105-/64.13; 105-262;
Eff February I. 1976;
Amended Eff. October I, 1991; July I, 1990; February I, I9SS; March 1, 1987.

.4602 AIRCRAFT: BOATS: RAILWAY CARS: LOCOMOTIVES: MANUFACTURED HOMES

(a) Effective August 1, 1989, the maximum sales tax on retail sales of aircraft, boats, railway cars or
locomotives increased from three hundred dollars ($300.00) to fifteen hundred dollars ($1,500.00). The
rate of tax applicable to such sales of aircraft, boats, railway cars or locomotives three percent (two
percent until July 16, 1991) state tax and is payable to the Secretary of Revenue on vendors' sales and
use tax reports.

Effective October 1, 1989, the term "motor vehicle", as set forth under G.S. 105-164.3(8b), excludes a
manufactured home. G.S. 105- 164.3(Sa) defines a "manufactured home" as a structure that is designed
to be used as a dwelling and:

(1) Is built on a permanent chassis;

(2) Is transportable in one or more sections;

(3) When transported, is at least eight feet wide or 40 feet long; and

(4) When erected on a site, has at least 320 square feet.

Retail sales of manufactured homes will continue to be subject to the two percent rate of sales tax with
a maximum tax of three hundred dollars ($300.00) per article including all accessories attached to the
manufactured home when it is delivered to the purchaser. Each section of a manufactured home that
is transported to the site where it is to be erected is a separate article. Dealers must continue to remit
sales tax to the Secretary of Revenue on their retail sales of manufactured homes.

(b) A retail sale of a boat with a boat trailer is considered to be the sale of two separate articles. The
retail sale of the boat trailer, a motor vehicle within the meaning of the statute, is subject to the three
percent highway use tax with a maximum tax of one thousand dollars ($1,000.00) applicable to the
trailer. The retail sale of the boat is subject to the three percent (two percent until July 16, 1991) rate
of tax with a maximum tax of fifteen hundred dollars ($1,500.00) applicable to the sale of any boat
except for those sales exempt from tax under the provisions of G.S. 105-164.13(9). The tax shall be
computed on the gross sales price of the boat, including charges for the boat motor, fenders, boat and
motor controls, compasses, windshields, horns, lights, or any other parts or accessories, all of which
must be attached thereto at the time of delivery to the purchaser, labor for installing such parts and
accessories, freight or any other charge for preparing the boat for sale. Life jackets, life rings, cushions,
flares, fire extinguishers and rope are considered to be safety equipment rather than accessories to the

7:7 NORTH CAROLINA REGISTER July I, 1992 740

FINAL RULES

boat and sales of such items at retail are subject to the four percent (three percent until July 16, 1991)
state tax and any applicable local sales or use tax notwithstanding they are sold with the boat. Parts
and accessories, including boat motors, fenders, boat and motor controls, lights, windshields, homs and
other above-named items sold separately from the sale of a boat are also subject to the four percent
(three percent until July 16, 1991) state tax and any applicable local sales or use tax.

Histon Note: Statutory: Authority G.S. 105-164.4; 105-164.6; 105-262;
Eff. February I. 19~6;
Amended Eff. October I, 1991; July I, 1990; January 3, 1984; May II. 1979.

.4603 MOTOR VEHICLE SERVICE BUSINESSES

(a) Persons engaged in the business of repairing automobiles and other motor vehicles are liable for
collecting and remitting the four percent (three percent until July 16, 1991) state and any applicable
local sales or use tax on the sales price of any parts, accessories or other tangible personal property
which they furnish in connection with repairing their customers' vehicles. Charges for labor to install
the parts, accessories and similar property are not subject to tax if such charges are separately stated
on the customers' invoices and in the vendor's records; otherwise, the total charges are subject to the
tax.

(b) Sales of repair parts, accessories and other tangible personal property to automotive repair shops
for resale in connection with repairing their customers' vehicles are not subject to tax when supported
by certificates of resale, Form E-590.

(c) Sales of tools, equipment and supplies to automotive repair shops for use in conducting their
business are subject to the four percent (three percent until July 16. 1991) state and any applicable local
sales or use tax and vendors making such sales are required to collect and remit same. Certificates of
resale are not applicable to sales of this nature. If. in addition to repairing motor vehicles, a repair shop
actually makes sales of tools, equipment, supplies, and similar items to its customers, such repair shop
may purchase such items under a certificate of resale. Vendors selling tools, equipment, supplies and
similar items to a repair shop, or similar business which does not ordinarily and customarily engage in
reselling such articles at retail should require from such vendee a certificate of resale with each order for
such articles. Such vendee is then liable for collecting and remitting the four percent (three percent until
July 16, 1991) state and any applicable local sales or use tax on its sales of tools, equipment, supplies
and similar items.

(d) The total charge for all tangible personal property, including windshields, window glass, seat
covers, floor mats, head liners, runners, channels, pig rings, felt, tacks, screws, thread, tape, windlass,
welt cord, and similar items installed in or upon motor vehicles or other articles by persons selling and
installing such property are subject to the four percent (three percent until July 16, 1991) state and any
applicable local sales or use tax. The charge for labor performed or other services rendered in installing
the same are also subject to the four percent (three percent until July 16, 1991 ) state and any applicable
local sales or use tax unless such charges are separately stated on the customer's invoice and in the
vendor's records. All tax due hereunder must be collected and remitted to the department by the per-
son selling and performing such installation service. Sales of tangible personal property for resale in
connection with glass repair and reupholstery jobs are not subject to tax when supported by properly
executed certificates of resale; however, any tools, supplies or other property sold for use in performing
such work are subject to the four percent (three percent until July 16, 1991) state and any applicable
local sales or use tax.

(e) Persons engaged in the business of painting or refmishing motor vehicles are the users or con-
sumers of tangible personal property which they purchase for use in the performance of such services.
Sales to such businesses of paint, primer, sandpaper and belts, masking tape, putty and other finishing
or refmishing materials, including those named in Paragraph (f) of this Rule, tools, supplies and any
other tangible personal property for use in body repair, painting or refmishing work are subject to the
four percent (three percent until July 16, 1991) state and any applicable local sales or use tax. If, in
addition to such body repair, painting or refmishing work, said businesses purchase tangible personal
property such as automobile fenders, doors, windshields or other parts or accessories, and sell the same
to their customers, such businesses are liable for collecting and remitting the tax on such sales irre-
spective of whether the sales are made in connection with repair or refmishing jobs.

(f) Sales of soap. wax. polish, glaze, undercoating, scotchguard, finish protectants and other related
materials to motor vehicle dealers and other businesses that use such materials to wash. wax. and or
apply a protective coating to automobiles are subject to the four percent (three percent until July 16,
1991 ) state and any applicable local sales or use tax thereon.

"41 7:7 NORTH CAROLINA REGISTER July I, 1992

FINAL RULES

History Note: Statutory Authority G.S. 105-1643; 105-164.4; 105-164.5; 105-164.6; 105-262;
Eff. February I, 1976;
Amended Eff. June 1, 1992; October I, 1991.

.4604 SPECIAL EQUIPMENT-ACCESSORIES: MOTOR VEHICLES

(a) Effective October 1, 1989, retail sales of motor vehicles, including all accessories attached to the
vehicles when delivered to the purchaser, are exempt from sales tax. Prior to October 1, 1989, retail
sales of motor vehicles with special accessories such as pulling devices, hole digging devices, aerial
working devices or other special accessories which are attached to and a part of such motor vehicles
when they are delivered to purchasers are subject to the two percent rate of tax with a maximum tax
of three hundred dollars ($300.00) applicable to each such vehicle. The term "motor vehicle", as used
in this Rule, means a vehicle that is designed primarily for use upon the highways and is either self-
propelled or propelled by a self-propelled vehicle, but does not include:

(1) a moped as defined in G.S. 20-4.01(27)(dl);

(2) special mobile equipment as defined in G.S. 20-4.01(44);

(3) a tow dollv that is exempt from motor vehicle title and registration requirements under G.S.
20-51(10) or (11);

(4) a farm tractor or other implement of husbandry;

(5) a manufactured home; or

(6) road construction or road maintenance machinery or equipment.

(b) Persons selling such special equipment or accessories at retail which they mount upon a motor
vehicle chassis or body belonging to others must collect and remit the four percent (three percent until
July 16, 1991) state and any applicable local sales or use tax thereon. Any charges for labor or services
rendered in installing or applying such items are not subject to tax provided such charges are segregated
from the charge for the tangible personal property sold on the invoice given to the customer at the time
of sale and in the vendor's records; otherwise the total amount is subject to tax.

History S'ote: Statutory Authority G.S. 105-164.4; 105- 164.6: 105-262;
Eff. February I. 1976:
Amended Eff June I, 1992: October 1, 1991; July I, 1990: December I. I98S.

.4618 MOTOR VEHICLE SUPPLIES

History Note: Statutory Authority G.S. 105-/64.4; 105-/64.6; 105-262;
Eff. February I, 1976;
Amended Eff. October 1, 1991;
Repealed Eff June 1, 1992.

.4619 HIGHWAY USE TAX

(a) Effective October 1, 1989, retail sales of motor vehicles are exempt from sales tax and subject to
the three percent highway use tax under Article 5A of Chapter 105 of the General Statutes with a
minimum tax of forty dollars ($40.00) applicable thereto, with certain exceptions, and a maximum tax
of one thousand dollars ($1,000.00) on any one motor vehicle increasing to one thousand five hundred
dollars ($1,500.00) July 1, 1993. The highway use tax must be paid to the Commissioner of Motor
Vehicles by the dealer, the purchaser, or other applicant for a certificate of title at the time of making
application. The basis for the tax on sales of motor vehicles by retailers will be the sales price of the
motor vehicles including all accessories attached thereto at the time of deliver)' of the vehicles to the
purchasers less the amount of any allowance given by the retailer for motor vehicles taken in trade.
The basis for the tax on sales of motor vehicles for which a certificate of title is issued because of a sale
of the vehicle by the seller who is not a retailer is the market value of the vehicle, less the amount of
any allowance given by the seller for a motor vehicle taken in trade for the purchased motor vehicle.
The retail value of a motor vehicle for which a certificate of title is issued because of a reason other than
the sale of the motor vehicle is the market value of the vehicle. The market value of the vehicle is
presumed to be the value of the vehicle set forth in a schedule of values adopted by the Commissioner
of Motor Vehicles not to exceed the wholesale value.

(b) Effective October 1, 1989, the statute provides that the highway use tax will not be applicable to
motor vehicles delivered to purchasers on or after October 1, 1989, pursuant to written contracts of sale
entered into before that date, but they will be subject to the sales tax at the rate of two percent with

7:7 NORTH CAROLINA REGISTER July 1, 1992 742

FINAL RULES

the three hundred dollars ($300.00) maximum tax per vehicle. The highway use tax will not be appli-
cable to the transfer of a motor vehicle to:

(1) the insurer under G.S. 20-109.01 of the Motor Vehicle Laws because the vehicle is a salvage
vehicle;

(2) to either a manufacturer, as defined in G.S. 20-285, for resale; or

(3) to a motor vehicle retailer for the purpose of resale.

(c) Effective October 1, 1989, only the minimum tax of forty dollars ($40.00) will be imposed when
a certificate of title is issued as a result of the transfer of a motor vehicle:

( 1 ) by a gift between a husband and wife or a parent and child:

(2) by will or intestacy;

(3) by a distribution of marital property as a result of a divorce;

(4) to a secured party who has filed a security interest in the motor vehicle with the Department of
the Secretary of State;

(5) to a partnership or corporation as an incident to the formation of the partnership or corporation
and no gain or loss arises on the transfer under section 351 or section 721 of the Internal Re-
venue Code, or to a corporation by merger or consolidation in accordance with G.S. 55-110;
or

(6) to the same owner to reflect a change in the owner's name.

(d) Effective August 1, 1991, the highway use tax will not be applicable when a certificate of title is
issued as the result of a transfer of a motor vehicle:

(1) to the insurer of the motor vehicle under G.S. 20-109.1 because the vehicle is a salvage vehicle;

(2) to either a manufacturer, as defined in G.S. 20-286, or a motor vehicle retailer for the purpose
of resale;

(3) to the same owner to reflect a change or correction m the owner's name;

(4) by will or intestacy;

(5) by a conveyance between a husband and wife or a parent and child;

(6) by a distribution of marital property as a result of a divorce.

(e) Effective August 1, 1991, only the minimum tax of forty dollars ($40.00) will be imposed when
a certificate of title is issued as a result of the transfer of a motor vehicle:

( 1 1 to a secured party who has a perfected security interest in the motor vehicle;
(2) to a partnership or corporation as an incident to the formation of the partnership or corporation
and no gain or loss arises on the transfer under Section 351 or Section 721 of the Internal Re-
venue Code, or to a corporation by merger or consolidation in accordance with G.S. 55-1 1-06.
A maximum tax of one hundred fifty dollars ($150.00) (one hundred dollars ($100.00) effective October
1. 19S9 until August 1, 1991] applies when a certificate of title is issued for a motor vehicle that, at the
time of applying for a certificate of title, is and has been titled in another state for at least 90 days.
Credit is allowed for tax paid to another state; however, the tax credit does not reduce the tax due below
the forts dollars ($40.00) minimum.

( f) When a purchaser of a motor vehicle returns the vehicle to the seller within 90 days after the
purchase of the vehicle and receives a motor vehicle replacement or a refund of the purchase price paid
to the seller, the purchaser may obtain a refund of the tax paid on the certificate of title issued for the
returned vehicle less the minimum tax of forty dollars ($40.00) by submitting an application for refund
to the Commissioner of Motor Vehicles.

(g) G.S. 105-187.5 provides that, effective October 1, 1989. lessors of motor vehicles may elect to pay
the highway use tax to the Commissioner of Motor Vehicles when applying for a certificate of title for
a motor vehicle purchased by the retailer for lease or rental or may elect to collect and remit the tax to
the Secretary of Revenue on the lease or rental receipts derived therefrom. Effective April 23, 1991,
G.S. 105-187 was amended by adding Section 11 which allows lessors of motor vehicles the option of
paying the highway use tax to the Commissioner of Motor Vehicles rather than the alternate gross re-
ceipts tax to the Secretary' of Revenue on motor vehicles held in their inventory for lease prior to Oc-
tober 1. 1989. and leased or rented on or after that date. To make the election allowed by this Section,
a retailer must complete a form provided by the Division of Motor Vehicles. That Division will notify
the Secretary of Revenue of a retailer who makes an election under this Section. If this election is
made, no credit will be allowed for any tax paid on the purchase or rental of a motor vehicle under the
Sales and Use Tax Law and for any tax paid on gross receipts under the Highway L'se Tax Act. The
taxes collected under this Section will be credited to the General Fund.

Effective October 1, 1989, the rate of highway use tax on motor vehicle lease or rental receipts will be
eight percent for the first 90 continuous days of lease or rental of a vehicle to the same person, and the
rate will reduce to three percent for the remainder of the continuous period during which the vehicle

743 7:7 NORTH CAROLINA REGISTER July I, 1992

FINAL RULES

is leased or rented to that person. The maximum tax applicable to the sale of a motor vehicle applies
when the vehicle is leased or rented to the same person for more than 90 continuous days and the tax
paid by a person from the first day of such period applies toward the maximum tax. Effective July 1,

1991, the Highway Use Tax Act was amended to define long-term and short-term lease or rental.
Long-term lease or rental means a written agreement to lease or rent property for at least 365 contin-
uous days to the same person. Short-term lease or rental is a lease for less than 365 continuous days.
The rate of tax on the gross receipts from the short-term lease or rental of a motor vehicle is eight
percent and the tax rate on the gross receipts from the long-term lease or rental of a motor vehicle is
three percent. The maximum tax applies to a continuous lease or rental of a motor vehicle to the same
person. A retailer who elects to pay tax to the Secretary- of Revenue on the gross receipts from the lease
or rental of a motor vehicle must make this election when applying for a certificate of title for the ve-
hicle. To make the election, the retailer must complete a form provided by the Division of Motor
Vehicles. Once made, an election is irrevocable. The eight percent rate of tax will be deposited in the
General Fund. The three percent rate of tax will be deposited to the Highway Trust Fund. Separate
forms for reporting the separate rates of tax on motor vehicle lease receipts will be provide by the De-
partment of Revenue to motor vehicle lessors upon receipt of their request for such forms.

(h) G.S. 105-187. 5(d) was rewntten to authorize the Secretary of Revenue to administer the tax im-
posed on the gross receipts from the lease or rental of motor vehicles in the same manner as the tax
levied under G.S. 105- 164.4(a)(2). The administrative provisions and powers of the Secretary that ap-
ply to the tax levied under G.S. 105- 164.4(a)(2) apply to the tax imposed on the gross receipts from the
lease or rental of motor vehicles. The Division of Motor Vehicles may request the Secretary to audit
a retailer who elects to pay tax on gross receipts under this Section and the Division of Motor Vehicles
shall reimburse the Secretary' for the cost of the audit, as determined by the Secretary. In conducting
an audit of a retailer under this Section, the Secretary may audit any sales of motor vehicles made by
the retailer.

History Note: Statutory Authority G.S. 105-187.3; 105-187.4; 105-187.5; 105-187.6; 105-187.8;
105-187.9; 105-262;
Eff. October I, 1990;
Amended Eff. June I, 1992; October 1, 1991.

SECTION .4700 PRINTERS AND NEWSPAPER OR MAGAZINE PUBLISHERS

.4701 COMMERCIAL PRINTERS AND PUBLISHERS

(a) All retail sales of tangible personal property by commercial printers or publishers are subject to
the four percent (three percent until July 16, 1991) state and any applicable local sales or use tax unless
such sales are subject to a lesser rate of tax under the provisions of G.S. 105-164.4(1) or are exempt
by statute. The following sales are exempt from sales or use tax:

(1) charges for advertising space in newspapers, magazines and other publications;

(2) sales of newspapers by newspaper street vendors and by newspaper carriers making door to door
deliveries and sales of magazines by magazines vendors making door to door sales;

(3) charges made by printers for imprinting or binding books or forms or other similar items which
are owned by their customers;

(4) sales to manufacturers, producers, wholesalers and retailers of wrapping paper, labels, bags, car-
tons and other similar items when such items are used for packaging, shipping, or delivering
tangible personal property sold at wholesale or retail, and when such items constitute a part of
the sale of such tangible personal property and are delivered with it to the customer;

(5) sales of advertising supplements and any other printed matter ultimately to be distributed with
or as a part of a newspaper;

(6) sales of paper, ink and other tangible personal property to commercial printers and commercial
publishers for use as ingredient or component parts of free circulation publications, and sales
by printers of free circulation publications to the publishers of these publications. As used in
this Rule, the term "free circulation publications" means shoppers' guides that:

(A) are published on a periodic basis at recurring intervals;

(B) are mailed or distnbuted house-to-house, by street distributors, in racks, or in any other
manner at other locations without charge to the recipient;

7:7 NORTH CAROLINA REGISTER July I, 1992 744

FINAL RULES

(C) contain advertising of a general nature for the sale of goods and services by a variety of busi-
nesses, trades or industries and are not limited to advertising the sale of goods or services by a
particular business, trade or industry; and

(D) make space available to all advertisers for the purpose of inducing readers to purchase the
goods and services of the advertisers.

The term does not include house organs or trade, professional, or similar types of publications.
The ratio of news to advertising in a publication is not a factor in determining whether the
publication is a free circulation publication.
(7) printed material which is sold by a printer to a purchaser within or without this state is exempt
from sales or use tax when such printed material is delivered in this state by the printer to a
common carrier or to the United States Postal Service for delivery to the purchaser or the pur-
chaser's designees outside this state, if the purchaser does not thereafter use the printed material
in this state. Printed material which is sold by a printer to a purchaser within or without this
state is exempt from sales or use tax when the printed material is delivered by the printer directly
to a mailing house or to a common carrier or to the United States Postal Service for delivery to
a mading house in this state which will preaddress and presort the material and deliver it to a
common carrier or to the United States Postal Service for delivery to recipients outside this state
designated by the purchaser.

(A) Sales of printed material by a printer located within or without this state which is delivered
directly to the purchaser in this state for the original purpose of preparing and delivering the
printed material to the United States Postal Service or a common earner for delivery to pro-
spective customers or other recipients outside this state are exempt from sales and use tax pro-
vide such purpose is consummated. A purchaser of such printed material for preparation and
delivery to prospective customers and other recipients outside this state must furnish the vendor
a written statement certifying that the printed material is being purchased for use in a mailing
program which is in place at the time of purchase; otherwise, the vendor must collect and remit
the tax on such sales. Sales of printed materials to a user or consumer in this state to be placed
in the purchaser's inventory for use as needed are subject to sales or use taxes notwithstanding
that all or a portion of the printed material may be delivered to the United States Postal Service
or a common carrier for delivery to prospective customers or other recipients outside this state.

(B) A printer who sells printed material which is delivered to an in-state or out-of-state purchaser
at a point within this state or which is delivered to a common carrier or the United States Postal
Service for delivery to the purchaser at a point within this state who prepares the matenal to be
maded to prospective customers or other recipients without charge and transports the matenal
outside this state to be delivered to the United States Postal Service or a common carrier or to
a mailing house outside this state for delivery to designated recipients is liable for sales or use tax
except as provided herein.

(C) The sale of printed materials by vendors other than printers and other types of tangible per-
sonal property which is provided without charge to recipients, whether it be advertising materials
or gifts or donations, are subject to sales or use tax even though the items in question may be
mailed to designated recipients outside this state. For example, a purchaser in this state buys
tangible personal property other than printed material from a printer which is given to a donee
within or without this state and directs that the item can be shipped or mailed to the donee.
This transaction is subject to sales or use tax.

(b) Retail sales of advertising circulars, catalogues, booklets, pamphlets, forms, tickets, letterheads,
envelopes and simdar items and retail sales of books, magazines, periodicals, newspapers and other
publications are subject to the four percent (three percent until July 16, 1991) state and any applicable
local sales or use tax unless such sales are exempt from tax by statute. When publications, other than
magazines, are sold by subscription, the tax accrues at the time the subscription is accepted.

(c) Sales of paper, ink, and other tangible personal property to commercial printers or publishers for
use as an ingredient or component part of the printed matter which they produce for sale are exempt
from the tax.

(d) Sales to commercial printers and publishers of machinery and equipment and parts therefor and
accessories thereto for use directly in the production of newspapers, magazines and other printed matter
for sale are subject to the one percent rate of tax with a maximum tax of eighty dollars ($80.00) per
article. Included herein are custom made plates and dies when title thereto does not pass to the
pnnters' customers. Sales to commercial printers and publishers of tangible personal property such as
wood and metal which is used to fabricate plates and dies for use in the production of printed matter
for sale are likewise subject to the one percent rate of tax when title to the plates and dies does not pass

745 7:7 NORTH CAROLINA REGISTER July I, 1992

FINAL RULES

to the printers' customers. Sales to commercial printers and publishers of machinery, equipment, film,
and similar items of tangible personal property for use or consumption directly in the production of
such plates and dies are also subject to the one percent rate of tax. It is a printing trade practice that
title to lithographic and gravure plates and dies is retained by the printer or publisher. Unless it is
otherwise agreed in writing, the secretary will consider such items to be purchased by the printer or
publisher for use or consumption and taxable at the one percent rate of tax on the cost price thereof.

(e) Sales to commercial printers of custom made plates and dies for resale are exempt from sales or
use tax when supported by certificates of resale. Form E-590. Sales to commercial printers of tangible
personal property such as wood and metal which becomes a component part of printing plates
produced by such printers for sale to customers are likewise exempt from sales or use tax when sup-
ported by certificates of resale, form E-590. However, sales to commercial printers of machinery',
equipment, film, and similar items of tangible personal property which do not enter into or become a
component part of such plates and dies but are used or consumed by the printer in the direct pro-
duction of such plates and dies are subject to the one percent rate of tax. When, at the request of the
customer, commercial printers purchase custom made printing plates and dies for use in the direct
production of the printed matter or when they purchase wood and metal which becomes a component
part of printing plates and dies fabricated by the printer for use in the direct production of printed
matter and title to the plates and dies passes to the printers' customers, such items can be properly
purchased for resale. The printer is. of course, liable for collecting and remitting the four percent (three
percent until July 16, 1991) state and any applicable local sales or use tax on the total retail sales price
of such plates and dies including charges for tangible personal property and art work or any other ser-
vices that go into the manufacture or delivery thereof. In such cases, the printer's sales invoices and
records must show that the plates and dies are actually sold to the customer; otherwise, such items will
be deemed to have been used by the printer, and the cost price of same will be subject to the one per-
cent rate of tax.

(f) Sales to commercial printers and publishers of tangible personal property which is not resold as
such or which does not become an ingredient or component part of the tangible personal property
which they produce for sale or which is not production machinery or parts therefor and accessories
thereto are subject to the four percent (three percent until July 16, 1991) state and any applicable local
sales or use tax without any maximum tax.

(g) The provisions of Paragraphs (c) and (d) of this Rule have no application to sales of printing
equipment and supplies to firms which operate print shops for the production of printed matter for
their own use and not for sale. Purchases of printing equipment and supplies by such firms arc subject
to the four percent (three percent until July 16, 1991) state and any applicable local sales or use tax.

History Note: Statutory Authority G.S. 105-164.4; 105-164.5; 105-164.6; 105-/64.13;
105-262; 105-264;'
Eff February I, 1976:
Amended Eff. June 1. 1992; October I. 1991; February I, 19SS; April I, 19S6.

SECTION .5400 FORMS USED FOR SALES AND USE TAX PURPOSES

.5458 UTILITIES AND MUNICIPALITIES SALES TAX REPORT FORM: E -500E

The Utilities and Municipalities Sales Tax Report, Form E-500E, is to be filed by municipalities
remitting sales tax on electricity and utilities remitting sales tax on electricity, piped gas and telecom-
munications services. Effective October 1, 1990, the return is to be filed cither monthly or quarterly.
The return is to be used to remit the tax collected on the above-stated utility services.

History Note: Statutory Authority G.S. I05-164.4(a)(4a); 105-164.4(a)(4c); 105-262;
Eff. October 1, 1990;
Amended Eff June I, 1992.

.5460 USE TAX REPORT FORM: E-554

The Use Tax Report Form, E-554, is to be used by nonbusiness purchasers who purchased taxable
merchandise outside of North Carolina for use in this state. A state and local use tax may be due on
the purchase price, including transportation charges, regardless of whether the purchase was made in
the other state or whether the merchandise was delivered to the purchaser in North Carolina. Examples
of merchandise subject to the use tax include records, books, furniture, jewelry, and clothing purchased

7:7 NORTH CAROLINA REGISTER July I, 1992 746

FINAL RULES

out of state by means including mail or telephone. The tax must be reported on the Use Tax Report
form, Ii-554, to avoid penalty and interest.

History Note: Statutory Authority G.S. 105-164.3; 105-164.6; 105-164.8; 105-262;
Eff. June 1, 1992.

747 7:7 NORTH CAROLINA REGISTER July I, 1992

RRC OBJECTIONS

1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S.
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. I43B-30.2(d).

AGRICULTURE

Food and Drug Protection

2 NCAC 9L .0509 - Consultant's Educational and Experience Reqmnts
Agency Revised Rule

Plant Industry

2 NCAC 48 A .0239 - Permit to Sell Bees

Agency Revised Rule
2 NCAC4SA .0240 - Form BS-II

Agency Revised Rule
2 NCAC 48 A .061 1 - Program Participation and Payment of Fees

Agency Revised Rule

ECONOMIC AND COMMUNITY DEVELOPMENT

Banking Commission

RRC Objection
Obj. Removed

RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed

05/21192
05/21/92

04/16/92
04/16/92
04/16/92
04/16i92
04/16/92
04/16/92

4 NCAC 3C .0807 - Subsidiary Investment Approval
Agency Revised Rule

RRC Objection
Obj. Removed

04/16/92
04116192

4 NCAC 3C .0901 - Books and Records
Agency Revised Rule

RRC Objection
Obj. Removed

04/16192
04,16192

4 NCAC 3C .0903 - Retention: Reproduction/ Disposition of Bank Records RRC Objection
Agency Revised Rule Obj. Removed

04/16/92
04/16/92

4 NCAC 3D .0302 - Administration of Fiduciary Powers
Agency Revised Rule

RRC Objection
Obj. Removed

04/16,92
04/16/92

4 NCAC 3H .0102 - Regional Bank Holding Company Acquisitions
Agency Revised Rule

RRC Objection
Obj. Removed

04,16,92
04/16/92

Board of Alcoholic Control

4 NCAC 2R .0^01 - Standards for Commission and Employees
Agency Revised Rule

RRC Objection
Obj. Removed

05:21192
05/21/92

4 NCAC 2R .0702 - Disciplinary Action of Employee
4 NCAC 2R .1008 - Conflicts of Interest
Agency Revised Rule

RRC Objection
RRC Objection
Obj. Removed

05/21/92
05/21192
05:21192

4 NCAC 2R .1205 - Closing of Store

4 NCAC 2S .0/02 - Applications for Permits: General Provisions
Agency Revised Rule

RRC Objection
RRC Objection
Obj. Removed

05'21I92
05121 "92
05121/92

4 NCAC 2S .0106 - Special Requirements for Hotels
Agency Revised Rule

RRC Objection
Obj. Removed

05/21/92
05/21/92

4 NCAC 2S .0503 - Pre-Orders

4 NCAC 2S .0527 - Guest Rooms Considered Residence
Agency Revised Rule

RRC Objection
RRC Objection
Obj. Removed

05 '21 92
05 21 92
05/21/92

4 NCAC 2S .0529 - Mixed Beverages Catering Permits in "Dry Areas"
Agency Revised Rule

RRC Objection
Obj. Removed

05/21/92

05/21,92

4 NCAC 2S .1008 - Advertising of Malt Beverages and Wine by Retailers

RRC Objection

05/21/92

7:7 NORTH CAROLINA REGISTER July I, 1992

748

RRC OBJECTIONS

Agency Revised Rule
Community Assistance

4 NCAC 19L .0/03 - Definitions

Agency Revised Rule
4 NCAC 19L .0403 - Size and Use of Grants Made to Recipients

Agency Revised Rule
4 NCAC 19L .0407 - General Application Requirements

Agency Revised Rule
4 NCAC I9L .1301 - Definition

Agency Revised Rule

Savings Institutions Division: Savings Institutions Commission

4 NCAC I6F .0001 - Permitted Activities

Agency Revised Rule
4 NCAC 16F .0008 - Finance Subsidiary Fransactions With Parent

Agency Revised Rule
4 NCAC 16F .0009 - Issuance of Securities by Finance Subsidiaries

Agency Revised Rule
4 NCAC 16F .001 1 - Holding Company Subsidiaries! Finance Subsidiaries

Agency Revised Rule

Obj. Removed 05,21)92

RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed

04 16,92
04,16,92
04, 16;92
05 \ 21)92
04, 16]92
05,21192
04, 16/92
04, 16/92

04 16)92
04,16,92
04, 16)92
04,16,92
04,16,92
04,16,92
04 16)92
04, 16)92

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES

Coastal Management

ISA NCAC 711 .0306 - General Use Standards for Ocean Hazard Areas RRC Objection 05, 21,92

Environmental Management

ISA NCAC 2B .0/01 - General Procedures RRC Objection 05 21/92

Agency Revised Rule Obj. Removed 05, 21)92

15A NCAC 2B .0/04 - Considerations in Assigning Water Supply Class RRC Objection 05,21)92

Agency Revised Rule Obj. Removed 05 21)92

ISA NCAC 2B .0202 - Definitions RRC Objection 05, 21, 92

Agency Revised Rule Obj. Removed 05,21/92

ISA NCAC 2B .02/1 - Fresh Surface Water Classifications and Standards RRC Objection 05,21/92

Agency Revised Rule Obj. Removed 05,21)92

ISA NCAC 2B .0301 - Classifications: General RRC Objection 05 21/92

Agency Revised Rule Obj. Removed 05,21/92

Radiation Protection

ISA NCAC II .0338 - Specific Terms and Conditions of Licenses

Agency Revised Rule
ISA NCAC II .0339 - Fxpiration of Licenses

Agency Revised Rule

HUMAN RESOURCES

Facility' Services

RRC Objection 04 16)92

Obj. Removed 04 16)92

RRC Objection 04 16,92

Obj. Removed 04 16, 92

10 NCAC 3J .2801 - Supervision
Agency Revised Rule

RRC Objection 04 16 92
RRC Objection 04 16)92

749

7:7 NORTH CAROLINA REGISTER July I, 1992

RRC OBJECTIONS

RRC Objection 051 21 192

Agency Raised Rule Obj. Removed 05/21/92

10 NCAC 3J 3401 - Applicability - Construction RRC Objection 04/16/92

Agency Revised Rule RRC Objection 04/16/92

10 NCAC 3L .0902 - License RRC Objection 04/16/92

Agency Revised Rule Obj. Removed 04/16/92

10 NCA C 3L .0903 - Application for and Issuance of License RRC Objection 04/16/92

Agency Revised Rule Obj. Removed 04/16/92

10 NCAC 3L .0904 - Inspections RRC Objection 04/16/92

Agency Revised Rule Obj. Removed 04/16/92

10 NCAC 3L .0905 - Multiple Premises RRC Objection 04/16/92

Agency Revised Rule Obj. Removed 04/16/92

10 NCA C 3L . 1202 - Case Review and Plan of Care RRC Objection 04/ 16/92

Obj. Removed 05/21/92

Mental Health: General

10 NCAC 14M .0~04 - Program Director

INSURANCE

Agent Services Division

// NCAC 6 A .0802 - Licensee Requirements RRC Objection 05/21/92

Agency Revised Rule Obj. Removed 05/21/92

LABOR

Elevator and Amusement Device

13 SCAC 15 .0402 - Responsibility for Compliance

Agency Revised Rule
13 NCAC 15 .0429 - Go Karts

Agency Revised Rule

LICENSING BOARDS AND COMMISSIONS

Cosmetic Art Examiners

21 NCAC 14N .0/07 - Special Arrangements for Disabled
Agency Revised Rule

Dietetics Nutrition

21 NCAC 17 .0002 - Requirement of License RRC Objection 05^21/92

Agency Revised Rule Obj. Removed 05/21/92

21 NCAC 17 .0003 - Qualifications for Licensure RRC Objection 05! 21/92

Agency Revised Rule Obj. Removed 05/21/92

21 NCAC 17 .0004 - Applications RRC Objection 05121/92

Agency Revised Rule Obj. Removed 05/21/92

21 NCAC 17 .0005 - Examination for Licensure RRC Objection 05/21/92

Agency Revised Rule Obj. Removed 05 21/92

21 NCA C 1 7 .0007 - Provisional License RRC Objection 05/21/92

Agency Re\ised Rule Obj. Removed 05/21/92

21 NCAC 17 .0012 - Suspension. Revocation and Denial of License RRC Objection 05 21 92

Agency Revised Rule RRC Objection 05/21/92
21 NCA C 17 .0014 - Code of Ethics for Professional Practice! Conduct RRC Objection 05/21/92

RRC Objection 04/16/92

Obj. Removed 05/21/92

RRC Objection 04! 16/92

Obj. Removed 04/16/92

RRC Objection 05/21/92
Obj. Removed 05/21/92

7:7 NORTH CAROLINA REGISTER July I, 1992

750

RRC OBJECTIONS

Agency Revised Rule RRC Objection 05 21, 92

Nursing

21 NCAC 36 .030/ - Approval Body RRC Objection 05 21 92

Agency Revised Rule Obj. Removed 05 21, 92

STATE PERSONNEL

Office of State Personnel

25 XCA C IH .0603 - Special Recruiting Programs RRC Objection 05 21, 92

25 NCAC U .1005 - Eligibility for Services RRC Objection 05 21 92

'51 7:7 NORTH CAROLINA REGISTER July I, 1992

RULES INVALID A TED BY JUDICIAL DECISION

1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court,
Court of Appeals, Superior Court (when mailable), and the Office of Administrative Hearings which
invalidate a rule in the North Carolina Administrative Code.

25 NCAC IB .0414 - SITU A TIO.XS IN WHICH A TTORNEYS FEES MA Y BE A WARDED

Robert Roosevelt Reilly Jr., Administrative Law Judge with the Office of Administrative Hearings,
declared Rule 25 NCAC IB .0414 void as applied in William Paul Fearrington, Petitioner v. University
of North Carolina at Chapel Hill, Respondent (91 OSP 0905).

7:7 NORTH CAROLINA REGISTER July I, 1992 752

CONTESTED CASE DECISIONS

1 his Section contains the full text of some of the more significant Administrative Law Judge
decisions along with an index to all recent contested cases decisions which are filed under
North Carolina's Administrative Procedure Act. Copies of the decisions listed in the index
and not published are available upon request for a minimal charge by contacting the Office
of Administrative Hearings, (919) 733-2698.

KEY TO CASE CODES

ABC Alcoholic Beverage Control Com-
mission

BDA Board of Dental Examiners

BME Board of Medical Examiners

BMS Board of Mortuary Science

BOG Board of Geologists

BON Board of Nursing

BOO Board of Opticians

CFA Commission for Auctioneers

COM Department of Economic and Com-
munity Development

CPS Department of Crime Control and

Public Safety

CSE Child Support Enforcement

DAG Department of Agriculture

DCC Department of Community Colleges

DCR Department of Cultural Resources

DCS Distribution Child Support

DI1R Department of Human Resources

DOA Department of Administration

DOJ Department of Justice

DOL Department of Labor

DSA Department of State Auditor

DST Department of State Treasurer

EDC
EHR

ESC
HAF

HRC

IND

INS

LBC

MI K

MIA

OAH

OSP
PHC

POD

SOS

SPA

WRC

Department of Public Instruction
Department of Environment, Health,
and Natural Resources
Employment Security Commission
Hearing Aid Dealers and Fitters
Board

Human Relations Commission
Independent Agencies
Department of Insurance
Licensing Board for Contractors
Milk Commission

Board of Nursing I lome Administra-
tors

Office of Administrative I Iearings
Department of State Personnel
Board of Plumbing and Heating
Contractors

Board of Podiatry Examiners
Department of Secretary of State
Board of Examiners of Speech and
I anguage Pathologists and Audiol-
ogists
Wildlife Resources Commission

CASK NAME

CASE
NUMBER

AI.J

TILED
DATE

Alyce YV. Pnnglc

Department of Education

88 OSP 0592
88 EEO 0992

Morgan

03/27/92

Susie Woodle

Department of Commerce, State Ports Authority

88 OSP 1411

Mann

03/25/92

Fernando Demeco White

DHR, Caswell Center

89 OSP 0284

West

01/10/92

Cathy Fayc Barrow

DIIR. Craven County Health Department

89 DHR 0715

Morgan

03/09/92

Barbara Trivette

Department of Correction

90 OSP 0133

Morgan

05/20/92

753

7:7 NORTH CAROLINA REGISTER July I, 1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Kenneth W. White

Employment Security Commission

90 OSP 0390

Becton

01 13.92

Craig S. Eury

Employment Security Commission

90 OSP 0391

Becton

01/13/92

Jolene H. Johnson

DHR, Division of Medical Assistance

90 DHR 0685

Morgan

02/21/92

Dover W. Walker

Department of Environment, Health, & Natural Resources

90 OSP 0873

91 OSP 0180

Chess

05 06,92

Joseph E. Nunes

DHR, Division of Social Services, CSE

90 CSE 1036

Morgan

04/15/92

Sgt. Carl Edmunds

DHR, Division of Social Services, CSE

90 CSE 1135

Nesnow

02 04 92

Rafael Eigueroa

DHR, Division of Social Services, CSE

90 CSE 1138

Morgan

03/30/92

Sammie L. Erazier

DHR, Division of Social Services, CSE

90 CSE 1167

.Morgan

03 24 92

Melvin A. Edwards

Department of Correction

90 OSP 1175

Nesnow

06 09 92

Richard A. Boyett

DHR, Division of Social Services, CSE

90 CSE 1184

Morgan

03 30 92

Lance McQueen

DHR, Division of Social Services, CSE

90 CSE 1204

Morgan

03 30/92

Kcrmit Einney

Department of Correction

90 OSP 1380

Morrison

02 12 92

Larry D. Oates

v.
Department of Correction

90 OSP 1385

Becton

04 06/92

Antonio S. Henderson

DHR, Division of Social Services, CSE

90 CSE 1391

Becton

05 04 92

Fernando Guarachi

DHR, Division of Social Services, CSE

90 CSE 1393

Morgan

04 07 92

Jerry Odell Johnson

Sheriffs' Education & Training Standards Comm

90 DOJ 1411

Morgan

1 09 92

7:7 NORTH CAROLINA REGISTER July I, 1992

754

CONTESTED CASE DECISIONS

CASE NAME

CASE
NLMBER

ALJ

FILED
DATE

Stoncy W. & Darlcne L. Thompson

Department of Environment, Health, & Natural Resources

91 EHR 0003

West

01/06/92

Gloria Jones Medbill

Children Special Health Services

91 EHR 0142

Morgan

03/11/92

Shonn S. Peek

Bd of Trustees Teachers' & St Emp Retirement Sys

91 DST0147

Gray

04/16/92

Willie C. Rone

v.
DHR, Division of Social Services, CSE

91 CSE 0166

Morgan

04/13/92

Thomas Such

EHR and William W. Cobey Jr.

91 OSP0202

Becton

02/20/92

N.C. Human Relations Comm. on behalf of Deborah Allen

v.
Charles Watkins

91 HRC 0204

Morrison

03/17/92

Cindy Gale Hyatt

Department of Human Resources

91 DHR 0215

Morgan

02/27/92

Gliston L. Mornsey

Bd of Trustees 'Teachers' & St Emp Retirement Sys

91 DST0232

West

02/03/92

Anthony Caldwell

Juvenile Evaluation Center

91 OSP 0259

Morgan

03/12,92

Kenneth R. Downs, Guardian of
Mattie M. Greene

Teachers' & St Emp Comp Major Medical Plan

91 DST 0261

Gray

02/20/92

Galen E. Newsom

Department of Correction

91 OSP 0282

Becton

06/08/92

Deborah W. Clark

DHR. Dorothea Dix Hospital

91 OSP 0297

Nesnow

01/16/92

Wade R. Bolton

DHR, Division of Social Services, CSE

91 CSE 0312

Mann

01/14/92

Betty L. Rader

v.
Teachers' & St Emp Major Medical Plan

91 DST 0330

Morgan

01 10 92

Marcia Carpenter

v.
l.'NC - Charlotte

91 OSP 0346

Mann

03 12 92

755

7:7 NORTH CAROLINA REGISTER July 1,1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

James Arthur Lee

NC Crime Victims Compensation Commission

91 CPS 0355

Chess

03 05/92

Britthaven, Inc. d.'b/a Britthaven of Louisburg

DHR, Division of Facility Services, Licensure Section

91 DHR 0360

Morgan

06 04 92

Fred A. Wilkie

Wildlife Resources Commission

91 OSP 0398

Chess

04 20/92

Michael Darwin White

Department of Environment, Health, & Natural Resources

91 OSP 0413

Morrison

02 14/92

Curtis Wendell Bigelow

CCPS, Division of State Highway Patrol

91 OSP 0418

West

03 10 92

Alcoholic Beverage Control Commission

Hilsinger Enterprises, Inc., t/a The Waterin Hole

91 ABC 0442

Gray

01 10 92

Penny Whitfield

Pitt County Mental Health Center

91 OSP 0465

Gray

01 08 92

Senior Citizens' Home Inc.

DHR, Division of Facility Services, Licensure Section

91 DHR 0467

Gray

02 18/92

Alcoholic Beverage Control Commission

Everett Lee Williams Jr., t/a Poor Boys Gameroom

91 ABC 0531

Morrison

01 31 92

Jonathan Russell McCravey, t/a Encore

v.
Alcoholic Beverage Control Commission

91 ABC 0534

Morrison

02 04 92

Dorothy "Cris" Crissman

Department of Public Instruction

91 OSP 0581

Morrison

04 03 92

Horace Bntton Askew Jr.

Sheriffs Education & Training Standards Comm

91 DOJ 0610

Reilly

01 22/92

Roy L. Keever

Department of Correction

91 OSP 0615

West

02 26 92

Ten Broeck Hospital (Patient #110587,

Medicaid #124-24-4801-C)
Ten Broeck Hospital (Patient #110538,

Medicaid #240334254S)
Ten Broeck Hospital (Patient #110788,
Medicaid #900- 12-6762-T)
v.
DHR, Division of Medical Assistance

91 DHR 0618
91 DHR 0429
91 DHR 1265

Morrison

04 08 92

7:7 NORTH CAROLINA REGISTER July 1, 1992

756

CONTESTED CASE DECISIONS

CASE NAME

CASE
NLMBER

ALJ

FILED
DATE

Larry Madison Chatman. t a Lam's Convenient Store

v.
Alcoholic Beverage Control Commission

91 ABC 0626

Gray

02 20 92

Lester L. Baker Jr.

Bd of Trustees '/Teachers' St Employees' Retirement Sys

91 DST0639

Becton

05 28 92

Cecil Leon Neal

Department of Economic & Community Development

91 OSP0648

Mann

02 0792

DAG, Food & Drug Protection Div, Pesticide Section

v.
D. Carroll Vann

91 DAG 0654

Morrison

01 15 92

Kidd's Day Care and Preschool

Child Day Care Section

91 DHR 0666
91 DHR 0666

Becton

03 25 92

04 10 92

Mary Tisdale

Hyde County Health Department and EHR

91 EHR 0679

Morgan

03 23 92

Alcoholic Beverage Control Commission

Kenneth Richard Cooper, t a Silvers

91 ABC 0680

Becton

02 26 92

Sarah Linda H anions

.Alcoholic Beverage Control Commission

91 ABC 0688

Mann

02 27 92

Keith Hull

DHR - Division of Medical Assistance

91 DHR 0707

Chess

02 27 92

The Carrolton of Williamson. Inc.

DHR. Division of Facility Services, Licensure Section

91 DHR 0740

Morgan

06 04 92

Alcoholic Beverage Control Commission

Spring Garden Bar & Grill Inc.,

T A Spring Garden Bar & Grill

91 ABC 0753

Morrison

05 08 92

Nalley Commercial Properties

Department of Environment, Health, & Natural Resources

91 EHR 0757

Becton

05 OS 92

John E. Canup

DHR, Division of Social Services, CSE

91 CSE 0759

Reilly

01 13 92

Falcon Associates, Inc.

Department of Environment, Health, & Natural Resources

91 EHR 0767
91 EHR 0768

West

01 06 92

Michael F. Stone

Bd of Trustees Local Gov't Emp Retirement Sys

91 DST 0771

W'est

02 24 92

7:7 NORTH CAROLINA REGISTER July I, 1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Ruben Gene McLean

Alcoholic Beverage Control Commission

91 ABC 0772

Nesnow

01/30/92

Daniel W. Shcrrod

DHR, O Berry Center

91 OSP 0791

Mann

06/09/92

Bobby McEachern

Fayettcvillc State University

91 OSP 0839

Gray

02/06/92

Singletree, Inn

EHR, and Stokes County Health Department

91 EHR 0840

Nesnow

01/16/92

Henry B. Barnhardt

Mt Pleasant Vol Fire Dcpt, St Auditor/ Firemen's

Rescue Squad Workers' Pension Fund

91 DSA 0843

Reilly

01/29/92

Mackey L. Hall

DHR, Division of Social Services, CSE

91 CSE 0854

Reilly

01/17/92

Gloria J. Woodard

Division of Motor Vehicles

91 OSP 0855
91 OSP 0855

Mann

04 09, 92
04 13; 92

Kay Long

Department of Human Resources

91 DHR 0873

Reilly

03 17/92

Alcoholic Beverage Control Commission

Mack Ray Chapman, t/a Ponderosa Lounge

91 ABC 0887

Morrison

01/31/92

Joseph VV. Devlin Jr., Johnson Brothers Carolina Dist

v.
Alcoholic Beverage Control Commission

91 ABC 0890

West

02: 11/92

Ossie Beard

EHR & Wastewater Treatment Plant Certification Comm.

91 EHR 0893

Nesnow

03/12/92

Thomas A. Ritter

Department of I luman Resources

91 OSP 0907

Mann

05. 19/92

Alcoholic Beverage Control Commission

Trinity C. C, Inc., t/a Trinity College Cafe

91 ABC 0915

West

02/11/92

N.C. .Alcoholic Beverage Control Commission

Jessie Pendergraft Rigsbee, T/A Club 2000

91 ABC 0919

West

03/12/92

Alcoholic Beverage Control Commission

Cedric Warren Edwards, t/a Great, American Food Store

91 ABC 0923

Becton

02 26/92

7:7 NORTH CAROLINA REGISTER July I, 1992

758

CONTESTED CASE DECISIONS

CASE NAME

CASE

m:\iber

ALJ

FILED
DATE

Department of Environment, Health, & Natural Resources

v.
Hulls Sandwich Shop, .Andy Hull

91 EHR 0936

West

01 09 92

Benjamin C. Dawson

Department of Correction, Central Prison

91 OSP0942

West

06 11 92

Betty Davis db/a ABC Academy

DHR. Division of Facility Services, Child Day Care Section

91 DHR 0955

Morrison

01 31/92

Thomas J. Hailey

EHR and Rockingham County Health Department

91 EHR 0957

Becton

01 15.92

Ronald Waverly Jackson

EHR. Division of Maternal & Child Health, WIC Section

91 EHR 0963

Gray

02/24/92

Century Care of Laurinburg, Inc.

DHR, Division of Facility Services, Licensure Section

91 DHR 0981

Gray

03 24 92

James K. Moss Sr.

DHR, Division of Social Services, CSE

91 CSE 0985

Reilly

05 18 92

David J. Anderson

DHR. Division of Social Services, CSE

91 CSE 0989

Morgan

04 20/92

David Lee Watson

v.
DHR, Division of Social Services, CSE

91 CSE 0992

Reilly

05 18 92

Herbert R Clayton

DHR, Division of Social Sen ices, CSE

91 CSE 1000

Mann

04 02/92

Roy Shealey

Victims Compensation Commission

91 CPS 1002

Morrison

01 31 92

Joe L. Williams Jr.

DHR, Division of Social Services, CSE

91 CSE 1014

Morrison

04 30/92

Willie Brad Baldwin

DHR, Division of Social Services. CSE

91 CSE 1020

Reilly

01 28/92

Clinton Dawson

N.C. Department of Transportation

91 OSP 1021

Mann

03 05 92

Benjamin C. Dawson

Department of Correction

91 OSP 1025

West

02 IS 92

Paulette R. Smith

DHR. Division of Social Services, CSE

91 CSE 1026

Reilly

02 27 92

759

7:7 NORTH CAROLINA REGISTER July I, 1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

AL.I

FILED
DATE

Scot Dawson

v.
Department of Labor

91 DOL 1031

West

02/24/92

Luis A. Rosario

DHR, Division of Social Services, CSE

91 CSE 1046

Morrison

03,03,92

Elijah Jefferson Jr.

DHR, Division of Social Services, CSE

91 CSE 1055

Gray

04/20/92

Randy Quinton King

CCPS, State Highway Patrol

91 OSP 1064

Gray

03 24 92

Ronnie C. Glenn

DHR, Division of Social Services, CSE

91 CSE 1066

Nesnovv

05, 05 92

James D. Robinson

DHR, Division of Social Services, CSE

91 CSE 1068

Gray

04 29 92

William H. Hogsed

DHR, Division of Social Services, CSE

91 CSE 1070

Nesnow

03 16 92

David L. Brown

DHR, Division of Social Services, CSE

91 CSE 1074

Morrison

03,31 92

Gary A. Hamper

DHR, Division of Social Services, CSE

91 CSE 1077

Morrison

06/03/92

Donald M. Washington

DHR, Division of Social Services, CSE

91 CSE 1078

Morrison

03 04 92

William F. Driscoll

v.
DHR, Division of Social Services, CSE

91 CSE 1080

Mann

04 28 92

Melvm L. Miller Sr.

DHR, Division of Social Services, CSE

91 CSE 1084

Morrison

03 16 92

Bobby G. Evans

DHR, Division of Social Services, CSE

91 CSE 1094

Rcilly

01 13 92

William Louis Timmons

DHR, Division of Social Services, CSE

91 CSE 1104

Mann

02 1 8 92

Gerald Richardson

DHR, Division of Social Services, CSE

91 CSE 1112

Morgan

05 06 92

Edmund D. Hester

DHR. Division of Social Services, CSE

91 CSE 1113

Mann

04 21 92

7:7 NORTH CAROLINA REGISTER July 1, 1992

760

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Raymond Junior Cagle

DHR, Division of Social Services, CSE

91 CSE 1123

Mann

03 30 92

Richard E. Murray

Department of Human Resources

91 CSE 1134

Reilly

01 13 92

Pathia Miller

DHR. Division of facility Services, Child Day Care Section

91 DHR 1135

Mann

03 31 92

Atlantic Enterprises, Inc.

Department of Environment, Health. & Natural Resources

91 EHR 1136

Reilly

01 23 92

Theresa M. Sparrow

Criminal Justice Education & Training Standards Comm

91 DOJ 1138

Mann

02 04 92

Darrel D. Shields

DHR. Division of Social Services, CSE

91 CSE 1141

Morgan

03 30 92

John H. Price

DHR, Division of Social Services, CSh

91 CSE 1142

Morgan

05 06 92

Jerry Dexter Morrison Sr.

DHR. Division of Social Services. CSE

91 CSE 1144

Nesnow

05 21 92

James A. Hinson

DHR. Division of Social Services, CSE

91 CSE 1154

Mann

02 18 92

George H. Parks Jr.

DHR. Division of Social Services, CSE

91 CSE 1157

Morrison

01 27 92

United Screen Printers. Inc.

EHR. Division of Environmental Management

91 EHR 1179

Mann

06 04 92

Adrian Chandler Harley

DHR, Division of Social Services. CSE

91 CSE 1180

Nesnow

02 10 92

Billy J. Hall

DHR. Division of Social Services, CSE

91 CSE 1182

Nesnow

02 10 92

Donaldson L. Wooten

DHR. Division of Social Services, CSE

91 CSE 1189

Reilly

03 1 3 92

William P. Reid

DHR. Division of Social Services. CSE

91 CSE 1193

Nesnow

02 04 92

Jeddie R. Bowman

DHR. Division of Social Services, CSE

91 CSE 1195

Morrison

04 30 92

'61

7 :7 NORTH CAROLINA REGISTER July 1, 1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Ronald G. Bolden

DHR, Division of Social Services, CSE

91 CSE 1208

Gray

02/26/92

Wayne Phillip Irby

DHR, Division of Social Services, CSE

91 CSE 1211

Nesnow

02/04/92

Tony Hollingsworth

DHR, Division of Social Services, CSE

91 CSE 1212

Nesnow

02/10/92

Charles W. Norwood Jr.

DHR, Division of Social Services, CSE

91 CSE 1215

Mann

05/19/92

Russell G. Ginn

v.
Department of Correction

91 OSP 1224

Reilly

02/14/92

Angela McDonald McDougald

DHR, Division of Social Services, CSE

91 CSE 1227

Nesnow

02/28/92

Sering O. Mbye

DHR, Division of Social Services, CSE

91 CSE 1228

Mann

03/11/92

Jimmie McNair, D.B.A. Pleasure Plus

.Alcoholic Beverage Control Commission

91 ABC 1235

Gray

05/04/92

Michael L. Braton

DHR, Division of Social Services, CSE

91 CSE 1238

Mann

06 05 92

Arthur Thomas McDonald Jr.

DHR, Division of Social Services, CSE

91 CSE 1252

Morrison

03/31/92

Stanford Pari Rem

DHR, Division of Social Services, CSE

91 CSE 1255

Nesnow

02 04/92

Gene Weaver

DHR, Division of Social Services, CSE

91 CSE 1264

Reilly

03/25/92

James T. White

DHR, Division of Social Services, CSE

91 CSE 1271

Gray

02/27/92

Ronald Brown and Regina Brown

v.
DHR. Division of facility Services

91 DHR 1278

Bccton

02/25/92

Terrance Freeman

DHR, Division of Social Services, CSE

91 CSE 1283

Nesnow

05 04/92

Samuel Armwood

David Brantley. Wayne County Clerk of Superior Court

91 CSE 1285

Reilly

02 11 92

7:7 NORTH CAROLINA REGISTER July I, 1992

762

COST EST ED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Peter Gray Coley

DHR. Division of Social Services, CSE

91 CSE 1297

Reilly

04 21 92

Enos M. Cook

DHR, Division of Social Services, CSE

91 CSE 1303

Morrison

04 13 92

Raymond Yaughan

DHR, Division of Social Services, CSE

91 CSE 1304

Reilly

03 09 92

Stevie Wayne Yates

EHR and The Jones County Health Department

91 EHR 1305

Mann

05 29 92

Stanley Wayne Gibbs

Elizabeth City State University

91 OSP 131S

Gray

01 14 92

Alex Page

v.
DHR, Division of Facility Services. CSE

91 CSE 1323

Reilly

06 03 92

David Martin Strode

DHR, Division of Social Services. CSE

91 CSE 1327

Morgan

03 19 92

Man T. Blount

EHR and Hyde County Health Department

91 EHR 1331

Reilly

05 21 92

.Anthony T. McNeill

DHR. Division of Social Services, CSE

91 CSE 1336

Becton

04 20 92

DC. Bass

v.
Department of Crime Control and Public Safety

91 OSP 1341

Chess

04 07 92

Wallace Day Care Center

DHR, Division of Facility Services

91 DHR 1343

Nesnow

05 04 92

Steveason M. Bailey

McDowell Technical Community College

91 OSP 1353

Morrison

01 2S 92

Gary N. Rhoda
v.

Department of Correction

91 OSP 1361

Nesnow

01 31 92

William A. Sellers

DHR. Division of Social Services. CSE

91 CSE 1395

Gray

04 01 92

Marc D. Walker

CCPS. Division of State Highway Patrol

91 OSP 1399

Morrison

03 16 92

Serena Gaynor

DHR, Division of Vocational Rehabilitation

91 OSP 1403

Gray

03 02 92

"63

7:7 NORTH CAROLINA REGISTER July I, 1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Betty Davis, D/B/A ABC Academy

DHR, Division of Facility Sen ices, Child Day Care Section

91 DHR 1408

Chess

03 30 92

Bill Jones Jr. and Jessie F. Jones

v.
Department of Human Resources

91 DHR 1411

Nesnow

05/01/92

Leroy Robinson, Frank's Lounge

Alcoholic Beverage Control Commission

91 ABC 1416

Gray

05 28, 92

Charles R. Wellons II

v.
Department of Fnvironment, Health, & Natural Resources

91 EHR 1418

West

02 25 92

Connie Flowers

FUR and Hyde County Health Department

91 EHR 1420

Reilly

05 21 92

Charley Joe Milligan

Bd of Trustees Local Gov't Emp Retirement Sys

91 DST 1424

Gray

02 27 92

Roy Blalock, Deborah Eakins, John Gordon Wright

UNC - Chapel Hill

91 OSP 1429
91 OSP 1430

Gray

03 13/92

All States Asbestos Professionals

v.
EHR, Office of General Counsel

91 EHR 1432

Nesnow

06 02 92

James R. Fath

Crime Victims Compensation Commission

91 CPS 1451

Morrison

04 15 92

Janet Jhompson

DHR, Div Facility Svcs, Durham Cty Dept Social Svcs

91 DHR 1452

Gray

05 19 92

AB&S Exteriors (Arthur F. Williams Jr., Pres)

v.
Department of Labor, Wage & Hour Division

92 DOL 0001

Chess

05 18.92

Ollie Robertson

Crime Victims Compensation Commission

92 CPS 0002

Morrison

04 1 5 92

New Bern-Craven County Board of Education,

a Statutory Corporation of North Carolina

The Honorable Harlan E. Boyles, State Treasurer,

The Honorable Fred W. Talton, State Controller,

The Honorable Wilham W. Cobey, Jr., Sec. of EHR,

Dr. George T. Everett, Dir., Div. of Environmental Mgmt.

92 EHR 0003

Reilly

03 13 92

Ellen Allaood. The Red Bear Lounge, Inc.,

4022 North Main St., High Point, NC 27265

Alcoholic Beverage Control Commission

92 ABC 0007

Chess

04 07 92

7:7 NORTH CAROLINA REGISTER July I, 1992

764

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Robert Gooden

Department of Labor, Wage & Hour Division

92 DOL 0009

West

05 14/92

Mrs. Gillie L. Edwards, Swift Mart #3

EHR. Division of Maternal & Child Health. WIC Section

92 EHR 0022

Morrison

05 18/92

Private Protective Services Board

Robert R. Missildine, Jr.

92 DOJ 0025

Becton

03/23/92

Cindy G. Bartlett

Department of Correction

92 OSP 0029

Reilly

03 1692

Mr Kenneth L. Smith, Pitt County Mart, Inc.

EHR, Division of Maternal & Child Health, WIC Section

92 EHR 0085

Becton

04 15/92

Kurt Hafner

N.C. Retirement System et al.

92 DST 0094

Gray

03 04 92

Margaret Coggins

FHR. Division of Maternal & Cluld Health. WIC Section

92 EHR 0095

Becton

04 28 92

Roy Blalock, Deborah liakins, John Gordon Wnght

UNC - Chapel Hill

92 OSP 0096

Gray

03 13 92

Paula Dail

EHR, Division of Maternal & Child Health. WIC Section

92 EHR 0098

Becton

04 28 92

Youth Focus, Inc. (MID = 239-23-0865T)

DHR. Division of Medical Assistance

92 DHR 0110

Gray

02 26 92

Merle M. Lee

Department of Correction

92 OSP 0167

Reilly

06 10 92

Charles W. Parker

Department of Agriculture

92 OSP 0177

Reilly

04 27 92

Potters Industries, Inc.

William J. Stuckey. St Purchasing Off,

& NC Div of Purchase & Contract

92 DO A 0180

Nesnow

05 20 92

Brunswick County

Department of Environment, Health, & Natural Resources

92 EHR 0195

Morrison

04 2 1 92

Jessie Draft, Owner Sabrina's Day Care Ctr

Department of Human Resources

92 DHR 0197

Reilly

06 01 92

~65

7:7 NORTH CAROLINA REGISTER July I, 1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Connestee Falls Property Owners Assoc, Inc.

Wildlife Resources Commission

92 WRC 0207

Chess

05 28/92

John Marley Jr.

Department of Correction

92OSP0213

Reilly

05 18,92

N.C. Private Protective Services Board

Lawrence Donnell Morrissey

92 DOJ 0215

Chess

05 13/92

N.C. Private Protective Services Board

Sherrill David Beasley

92 DOJ 0216

Chess

05 13 92

Percy Lee Davis

Caledonia Correctional Inst.

92 OSP 0230

West

06 04 92

Timothy B. Milton

Crime Victims Compensation Commission

92 CPS 0265

Rerlly

05 18 92

Leon Scott Wilkinson

Criminal Justice Education & Training Standards Comm

92 DOJ 0280

West

04 24 92

Thomas L. Rogers

DHR, Division of Youth Services

92 OSP 0287

Gray

04 30/92

Larry A. Person Sr.

Department of Transportation

92 OSP 0304

Reilly

05 28 92

Paul M. Fratazzi, LPN

Polk Youth Institute

92 OSP 0325

Nesnow

05 01/92

Robert S. Scheer

Department of Crime Control & Public Safety

92 CPS 0339

Gray

05 18 92

Junmy Wayne Livcngood

v.
Department of Correction

92 OSP 0352

Nesnow

05 27/92

Jeffrey Mark Drane

Private Protective Services Board

92 DOJ 0372

Mann

05.12/92

Danny G. Hicks

v.
Private Protective Services Board

92 DOJ 0373

Mann

05 12,92

Max BoUck

Private Protective Services Board

92 DOJ 0374

Mann

05 12.92

7:7 NORTH CAROLINA REGISTER July I, 1992

766

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Fred Henry Hampton

Criminal Justice Education & Training Stds Comm

92 DOJ 0393

West

04 23 92

N.C. Alarm Systems Licensing Board

Eddie Sisk

92 DOJ 0495

Nesnow

06 04 92

767

7:7 NORTH CAROLINA REGISTER July 1, 1992

CONTESTED CASE DECISIONS

STATE OF NORTH CAROLINA
COUNTY OF BURKE

IN THE OFFICE OF
ADMINISTRATIVE HEARINGS

90OSP 1175

MELVIN A. EDWARDS,
Petitioner

N.C. DEPARTMENT OF CORRECTION,

Respondent

RECOMMENDED DECISION

For Respondent:

The above-captioned matter was heard before Dolores 0. Ncsnow, duly-appointed Administrative
Law Judge, on January 22 and 23, 1992, in Morganton, North Carolina.

APPEARANCES

For Petitioner: Phyllis Palmieri

Martha Chapman

Catawba Valley Legal Services, Inc.

200 Avery Avenue

Morganton, North Carolina 28655

ATTORNEYS FOR PETITIONER

Valerie Bateman,

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, North Carolina 27602-0629

ATTORNEY FOR RESPONDENT

ISSUE

Was Petitioner dismissed because of handicap discrimination?

ST ATI TES AND RULES IN ISSUE

N.C. Gen. Stat. 126-36, 168A-1, et seg.

25 N.C. Admin. Code 01D.0518

State Personnel Manual

Department of Correction Administrative Memo 1.07.27-88

PROCEDURAL BACKGROUND

On November 13, 1990, Petitioner filed a Petition for Contested Case appealing the termination
of his employment which had been determined by Respondent to be a voluntary resignation.

On December 26, 1990, Petitioner filed a Prehearing Statement alleging: (a) that he was dismissed
without just cause and (b) that he was dismissed because of a handicapping condition.

On December 28, 1990, upon Motion of the Respondent, the undersigned allowed a Stay of the
contested case to give the Respondent time to investigate the matter further.

On April 5, 1991, during the Stay period, the Respondent issued another letter of dismissal to
Petitioner informing him that he was being dismissed retroactive to July 14, 1990. This dismissal was
based upon unacceptable personal conduct.

7:7 NORTH CAROLINA REGISTER July /, 1992

768

CONTESTED CASE DECISIONS

On April 8, 1991, the undersigned .Allowed the Petitioner's Motion to Lift the Stay.

On July 17, 1991, upon Motion of the Respondent, the undersigned issued an Order dismissing
the Petitioner's just cause issue because he was not a permanent State employee, but allowing his ap-
peal based on handicap discrimination.

STIPj I.ATF.n AGREEMENT

1. The deposition testimony of Jeffrey Becker, Respondent's Personnel Director, was admitted in
whole in lieu of live testimony, by agreement of the parties.

STIPULATED FACTS

1. Petitioner was employed at McDowell Correctional Center on August 10, 1979, with a pay
grade of 60.

2. Petitioner was promoted at McDowell on April 1, 1986 from Correctional Officer to
Correctional Sergeant, with a pay grade of 64.

3. Petitioner resigned from McDowell for stress-related personal reasons on July 15, 1988.

4. Petitioner was hired at Western on June 21, 1989, as a Correctional Officer with a pav grade
of 62.

5. Petitioner was involuntarily resigned without written notice on August 6, 1990, effective July
13, 1990 due to his failure to report to work.

6. On March 26. L991, the Respondent notified Petitioner that the Respondent had determined
the agency had erroneously accepted Petitioner's resignation without written notice.

7. On April 5. 1991, Petitioner was dismissed for unacceptable personal conduct for failing to
report a DWI charge and for failing to report a charge of failure to give proper information at the scene
of an accident.

Based upon careful consideration of the stipulations, testimony and evidence presented at the
hearing, the documents and exhibits received into evidence, and the entire record in this proceeding, the
undersigned makes the following:

ADJUDICATED FACTS

1. Petitioner regularly worked the second shift at Western Youth Institute (WYI).

2. Petitioner, like other WAT employees, held a part-time position as a clerk in a convenience
store. The Fast Track, located near WAT.

3. At 11:00 p.m. on Friday, July 13. 1990. Petitioner began to work the third shift at the Fast
Track.

4. At 7:00 a.m. on Saturday. July 14. 1990. Petitioner's relief, a fellow WAT employee, did not
report for work. Petitioner remained and worked the day shift.

5. A customer of Petitioner's visited him at the Fast Track and gave him a mixed drink comprised
of vodka and orange juice.

6. During that shift, a Morganton Public Safety Officer received a call that Petitioner was acting
strangely and was having difficulty making change.

7. The Officer visited the Fast Track and questioned Petitioner but no action was taken.

'69 7:7 NORTH CAROLINA REGISTER July 1,1992

CONTESTED CASE DECISIONS

8. After work, as Petitioner was leaving the Fast Track parking lot, he backed into a vehicle
driven by Shane Chrisco. Petitioner stopped, spoke to Chrisco and provided Chrisco with insurance
information.

9. Neither Chrisco nor Petitioner called the police to investigate the accident.

10. Petitioner was scheduled to report to the second shift at WYI on July 14, 1990, but, as a result
of working sixteen hours at the Fast Track, he was not going to report for work at WYI.

1 1. Petitioner intended to drive home and call in his absence to WYI to comply with WYI's policy
that an employee call in absences to the shift lieutenant on the shift to which that employee is assigned.

12. On his way home, at approximately 2:45 p.m., Petitioner ran a stop sign and collided with
another automobile.

13. Petitioner was transported to and treated at the emergency room of McDowell General Hos-
pital in McDowell County as a result of the accident. He was later charged with DWI.

14. At some time on July 14, 1990, Petitioner's wife, Evangeline "Angje" Edwards called WYI
to report that Petitioner had been in a wreck and was in the hospital.

15. Mrs. Edwards speaks with a heavy accent and is sometimes difficult to understand.

16. Later that day, I'etitioner was released from the hospital and went home.

17. At some time after the parking lot accident, Mr. Chrisco discovered that he did not have the
correct insurance information. He then called the police and reported the accident.

18. When Mr. Chrisco reported the parking lot accident to the police, it was listed by the police
as a hit and run and a warrant was issued for the Petitioner.

19. During the night the Petitioner began to turn blue, was noncommunicative and showed other
signs of distress. Petitioner's wife brought him to the emergency room at the Memorial Mission Hos-
pital in Ashcville. Petitioner was tested and later released.

20. On Sunday. July 15, 1990. Ms. Edwards called WYI and told them that her husband could
not report for work. When asked to explain what had happened or when Petitioner would be return-
ing, Mrs. Edwards would not or could not provide any further information.

21. Upon recommendation of the emergency room physician at Memorial Mission Hospital, on
Monday evening, July 16, 1990, Petitioner and his wife, Evangeline Edwards, met with Dr. Stephen
Pike, Ph.D., a clinical psychologist.

22. Petitioner asked Dr. Pike to contact his employer and signed a release allowing the doctor to
talk with his employer.

23. On July 17, 1990, Ms. Edwards again contacted Lt. Steve Bailey and informed him that
Petitioner was not coming to work and that he was not in the hospital but that he was unable to come
to the phone and was unable to work. She explained he was under a doctor's care, identified the doctor
as Dr. Pike, and informed Bailey that the doctor would contact Bailey to explain what was going on
with Petitioner.

24. I'etitioner was not scheduled to work on July 18 or 19.

25. Lt. Mace attempted to contact the Petitioner on several occasions but was not successful.
On each occasion, either there would be no answer, or the Petitioner would not be at home, or he was
at home but his wife would not let him talk with Lt. Mace.

7:7 NORTH CAROLINA REGISTER July I, 1992 770

CONTESTED CASE DECISIONS

26. From July 14, 1990. until August 1, 1990, Petitioner was absent from work.

27. On July 24, 1990, Lt. Mace called the Petitioner's home and spoke with Mrs. Edwards to
advise her that the doctor had not called.

28. When Lt. Mace finally made contact with Mrs. Edwards, he pleaded with Mrs.. Edwards to
allow him to talk with the Petitioner. He told her that it was very important for the Petitioner to get
in contact with the Unit. Mrs. Edwards told Lt. Mace that the Petitioner could not come to the phone,
that his doctor would be calling them, she refused to discuss his condition, and started to cry.

24. later on July 24, 1990, Lt. Bailey was contacted by Dr. Pike and informed that Petitioner
was being treated for depression.

30. Earlier. Lieutenant Bailey had been directed to investigate the Petitioner's absence because
rumors had circulated that Petitioner had been arrested for DWI, possibly involving a hit and run.

31. On Monday. July 25, 1990. Lt. Mace submitted his report to Leon Morrow, Superintendent
of WYI. which indicated in part that Petitioner had hit a car in the lot of the Fast Track on Saturday,
July 14. 1990. and that an incident report was filed on Sunday. July 15, 1990. which indicated that
Petitioner had given the owner of the vehicle incorrect insurance information.

32. Prior to July 25, 1990. Petitioner himself did not contact his employer to report his absences
or his DWI charge.

33. Although WYI encourages its employees to call in their own absences to their shift Lieutenants,
calls from family members are accepted.

34. Earlier, in July of 1989, Petitioner received an oral warning for being absent without notifying
his supervisors.

35. On July 25. 1990, because Dr. Pike encouraged him to do so. Petitioner contacted Super-
intendent Morrow, and discussed his treatment for depression, his problems, counseling, and
medication. He also reported his DWI.

36. During that conversation, Morrow requested that Petitioner submit a written statement in-
cluding a request for leave and a statement concerning his legal problems, which Petitioner subse-
quently did.

37. Morrow asked Petitioner when he thought he could return to work and Petitioner indicated
that he would return to work on August 1. 1990.

38. Morrow told Petitioner on July 25, 1990, that he would "make no promises" concerning
granting Mr. Edwards' request for leave, but that Petitioner should come to see him before his 3:00 p.m.
shift on August 1 and they would discuss Petitioner's request for leave.

39. At that time, Mr. Morrow believed that he did not have enough information to make a deci-
sion about whether disciplinary action should be taken against the Petitioner because he had received
conflicting reports about whether the Petitioner had actually been in the hospital or in jail.

40. Employee absences are of critical concern to prison administrations because the inmate pop-
ulation must be monitored and controlled and a full complement of correctional officers is essential.

4 1 . The sick leave policy for the state provides that the agency may require a statement from a
medical doctor or other acceptable proof that the employee was unable to work because of personal
illness, family illness or death in the family. (25 NCAC IE .0304)

771 7:7 NORTH CAROLINA REGISTER July I, 1992

CONTESTED CASE DECISIONS

42. On July 31, 1990, Petitioner obtained a letter from Dr. Pike verifying that he had been under
the doctor's care and was released to work on August 1, 1990.

43. On July 31, 1990, Petitioner obtained a return to work slip from Dr. Uhren, a family physician
who had seen Petitioner during this time and prescribed an antidepressant. The note verified that he
had been under the doctor's care from 7/14/90 to 7/31/90.

44. Lt. Mace was instructed to call the Petitioner on July 31 and remind him that he was expected
to report to work the next day. Lt. Mace spoke with Petitioner's wife and asked her to give him the
message.

45. At approximately 9:00 a.m. on August 1, 1990, Petitioner went to the magistrate's office and
accepted service of a warrant for hit and run.

46. On August 1, 1990, Petitioner went to WYI at approximately 1:00 p.m. to check on the status
of his leave request. Morrow was not in so Petitioner went to the assembly room, the room where the
officers meet prior to shift change, and checked out the duty roster.

47. The shift change was not scheduled to occur until 3:00 p.m. and the officers meet in the as-
sembly room for "report" at 2:45 p.m.

48. Petitioner did not see his name on the duty roster where it normally would be. Petitioner
believed that elimination of an officer's name from the duty roster meant that the officer had been
separated from employment.

49. Because Morrow had made no assurances to Petitioner that his request for leave would be
granted, Petitioner concluded that he was discharged. He left the facility to avoid embarrassment.

50. On August 1, Mr. Morrow had been on the upper floors of the building from lunch time to
about two-thirty. Mr. Morrow came back to his office at 2:30 or 2:45 and waited for the Petitioner to
come in. A few minutes after three, Mr. Morrow proceeded to walk down the hallway and look for
the Petitioner. He did not see the Petitioner. Mr. .Morrow asked his secretary and other persons in
the office if they had seen him and they had not.

51. Mr. Morrow had planned to give the Petitioner a chance to explain his absences and the na-
ture of the charges against him.

52. Mr. Morrow determined that the Petitioner had failed to report to work. Mr. Morrow did
not consider that there was some miscommunication between himself and the Petitioner because their
telephone conversation on July 25 had been clear and because the Petitioner had been recently re-
minded the day before to come in.

53. Ms. Billie Cox, WYI's personnel clerk, saw Petitioner sometime around lunchtime on August
1, 1990. Ms. Cox saw Petitioner walk into Morrow's secretary's office, then come out and wait in the
hall for several minutes. She later told Morrow that Petitioner had been there.

54. Mr. Morrow considered the reports that the Petitioner had been involved in a hit and run
accident, a stop sign violation, a DWI violation and what appeared to be at least two different car ac-
cidents in two different counties to be reports of serious criminal offenses. The reports of Petitioner's
DWI appeared serious because they appeared to involve a hit and run accident.

55. Later on August 1, 1990, Leon Morrow contacted the DOC Personnel Office in Raleigh and
asked what to do with an employee who did not come in as requested. Morrow was directed to the
policy on "voluntary resignation without notice." 25 NCAC 01D .0518

56. A certified letter dated August 6, 1990, signed by Leon Morrow, was sent to Petitioner, in-
forming him that the DOC had decided to accept Petitioner's "voluntary resignation without notice."

7:7 NORTH CAROLINA REGISTER July I, 1992 772

CONTESTED CASE DECISIONS

57. On November 8, 1990, Melvin Edwards fded a petition for a contested case hearing.

58. On December 21, 1990, counsel for the DOC sought and was granted a stay of the proceedings
in this contested case to allow for an investigation surrounding the Petitioner's voluntary' resignation.

59. On March 26, 1991, Petitioner received a letter from the DOC signed by L.V. Stephenson,
that advised him that the DOC had "erroneously accepted (his) resignation without notice" and di-
rected him to appear at a predismissal conference at WYI on April 4, 1991.

60. On April 4, 1991, Petitioner responded to the letter through his counsel, and provided an af-
fidavit responding to the grounds for dismissal listed.

61. Petitioner was then notified by a letter dated April 5, 1991, signed by L.V. Stephenson, that
he had been dismissed, effective July 14, 1990, for unacceptable personal conduct for failing to report
a DWI charge, for failing to report a charge of fadure to give proper information at the scene of an
accident and for violating the departmental rule, DOC Administrative Memo 1.07.27-88, which requires
DOC employees to report criminal charges within 24 hours.

62. The policy on secondary employment provides that:

The employment responsibilities to the state are primary for any employee working full-time;
any other employment in which that person chooses to engage is secondary. An employee
shall have approval from the agency head before engaging in any secondary employment.
The purpose of this approval procedure is to determine that the secondary employment does
not have an adverse effect on the primary employment and does not create a conflict of in-
terest. (25 NCAC 1C .0701)

63. Petitioner understood that his secondary employment was never to interfere with his primary
obligation to the Department of Correction.

Based upon the above Findings of Fact, the undersigned makes the following:

( ()N( I I SIONS OF I AW

1 In a discrimination case, Petitioner has the burden of proof and must establish a prima facie
case of discrimination. If the Petitioner establishes a prima facie case, the employer must produce ev-
idence of a legitimate, non-discriminatory reason for Petitioner's discharge. Once the employer has
rebutted the prima facie case, the employee has the opportunity to demonstrate that the employer's
proffered reasons for its decision were pretextural.

2. In order to establish his prima facie case, Petitioner must first establish that he is a member
of a protected class, i.e., a handicapped person.

3. N.C. Gen. Stat. 168-1 provides that the definition of handicapped persons shall include those
individuals with physical, mental and visual disabilities.

4. N.C. Gen. Stat. 168A-3 defines handicapped person as any person who has a physical or
mental impairment which substantially limits one or more major life activities. Mental impairment is
defined as any mental disorder, such as mental retardation, organic brain syndrome, mental illnesses,
specific learning disabilities and other developmental disabilities but does not include any disorder,
condition or disfigurement which is temporary in nature leaving no residual impairment.

5. In Pressman v_ FNC , 78 N.C. App 296, 337 S.E.2d 644 (1985), cert, granted, 315 N.C. 589,
341 S.E.2d 28 ( l l )S6), it was determined that a person suffering from occasional episodes of stress, de-
pression and mental exhaustion is not a "handicapped person" as defined by Chapter 168.

6. Petitioner's episodes of stress and depression is not a handicapping condition such as to altord
him the protections of that protected category.

773 7:7 NORTH CAROLINA REGISTER July I, 1992

CONTESTED CASE DECISIONS

7. Petitioner has, therefore, failed to establish a prima facie case of handicap discrimination.

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the
following:

RECOMMENDED DECISION

That Respondent's decision to terminate Petitioner's employment be affirmed.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Adminis-
trative Hearings, P.O. Drawer 27447. Raleigh, N.C. 27611-7447, in accordance with North Carolina
General Statute 150B-36(b).

NOTICE

The agency making the final decision in this contested case is required to give each party an op-
portunity to file exceptions to this recommended decision and to present written arguments to those in
the agency who will make the final decision. G.S. 150B-36(a).

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and
to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.

The agency that will make the final decision in this contested case is the North Carolina State
Personnel Commission.

This the 9th day of June, 1992.

Dolores O. Nesnow
Administrative Law Judge

7:7 NORTH CAROLINA REGISTER July 1, 1992 774

CONTESTED CASE DECISIONS

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 91 OSP 0282

GALEN E. NEWSOM, )

Petitioner )

)

) RECOMMENDED DECISION

)
N.C. DEPARTMENT OF CORRECTION )

Respondent )

This matter was heard before Brenda B. Becton, Administrative Law Judge, on October 28, 1991
and January 8, 1992 in Raleigh, North Carolina. The record closed on April 24, 1992 when the parties
completed the filing of their post-hearing submissions.

APPEARANCES

For Petitioner: BROUGHTON, WILKENS, WEBB & JERNIGAN, Attorneys at Law,

Raleigh, North Carolina; William Woodward Webb appearing.

For Respondent: Valerie I . Bateman, Assistant Attorney General, North Carolina Department

of Justice, Raleigh, North Carolina.

ISSUES

1. Did the Petitioner engage in the alleged conduct'?

2. If so, does such conduct constitute unacceptable personal conduct within the meaning of North
Carolina General Statutes section 126-35 and the rules and policies of the Office of State Personnel
and the Respondent-Agency?

3. Did the Respondent conduct a meaningful pre-dismissal conference with the Petitioner?

4. Did the Respondent have "just cause" to dismiss the Petitioner?

STATUTES AND RULES INVOLVED

N.C. Gen. Stat. §126-35

25 NCAC U .0606 - .0608

FINDINGS OF FACT

From official documents in the file, sworn testimony of the witnesses, and other competent and
admissible evidence, it is found as a fact that:

1. From October 21, 1985 until December 14, 1990, the Petitioner, a permanent State employee, was
employed as a probation, parole officer and later as a Correctional Trainer II with the Respondent.

2. On December 12. 1990, between the hours of 6:00 p.m. and 6:30 p.m. at the Corner Cafe in
Salemburg, North Carolina, the Petitioner, while conversing about various incidents involving
firearms, unholstered his State issued weapon, placed the barrel to the head of Mr. Benny Pope,
and said, "I'm going to kill you!" in order to illustrate an incident that had happened to him and
to show how quickly an incident can occur. The Petitioner immediately reholstered his weapon
and the group he was dining with concluded their meal.

775 7:7 NORTH CAROLINA REGISTER July 1, 1992

CONTESTED CASE DECISIONS

3. The Petitioner was a firearms instructor with the Respondent. Mr. Pope is also an instructor with
the Respondent's Office of Staff Development and 1 raining.

4. The Petitioner's weapon was unloaded. It was a standard operating procedure for the firearms
instructors to check their weapons for ammunition and to remove any ammunition before leaving
the range. In addition, the Petitioner never carries a loaded w : eapon while he is conducting firearms
training.

5. Mr. Pope and the two trainees seated with the Petitioner were all aware that the Petitioner was
demonstrating an incident that had occurred previously when he unholstered his weapon.

6. There were several people in the restaurant who witnessed the Petitioner pointing the gun at Mr.
Pope. No one, however, said anything to the Petitioner or to the people he was with at the time
the incident took place.

7. Mr. Pope did not report the incident to anyone at work. The Respondent apparently learned of
the incident from other law enforcement personnel who were also patronizing the Corner Cafe.

8. Prior to this incident there was no written policy prohibiting demonstrations of various law
enforcement techniques from occurring at the Corner Cafe which is frequented by law enforcement
officials, including instructors and trainees.

9. At the time that this incident occurred, the Respondent did not have any written policy, rule, or
regulation regarding appropriate or inappropriate use of weapons.

10. Anne B. Porter is the Operations Manager for the Respondent's Office of Staff Development and
Training ("OSDT") and she supervised the Petitioner's supervisor, Hank Snyder, a Training Co-
ordinator.

11. At approximately 1:00 p.m. on December 13, 1990, Ms. Porter was notified by Dan Lilly, another
Operations Manager at OSDT, of the incident involving the Petitioner that had occurred on De-
cember 12, 1990. Ms. Porter accompanied Mr. Lilly and Mr. Monroe Waters, the Deputy Sec-
retary of the Department of Corrections, to Salemburg to investigate the incident.

12. The Justice Academy at Salemburg Academy is used by the Respondent as a training site and the
Petitioner had been involved in training a probation parole intensive officer's class.

13. When Ms. Porter, Mr. Lilly, and Mr. Waters arrived at the Academy, the Director had arranged
for them to meet with some police officers who had witnessed the gun incident in the office of the
Assistant Director of the Academy.

14. Subsequently, on the evening of December 13, 1990. the Petitioner, upon admitting that the inci-
dent at the Comer Cafe did occur, was instructed to relinquish his State automobile, pager, and
all State issued equipment immediately and not to teach that evening or to go near any training
being conducted by the Respondent's employees. He was also told to report to the Office of Staff
Development and Training the next morning.

15. On the morning of December 14, 1990 at approximately 7:45 a.m., the Petitioner sought out Bertis
H. Sellers, the Director of the Office of Staff Development and Training, to discuss the December
12, 1990 incident and to determine the effect the incident was going to have on his employment
with the Respondent. Because Mr. Sellers had a meeting to attend, the conversation between him
and the Petitioner was brief. Mr. Sellers listened to what the Petitioner had to say about the in-
cident and about keeping his job, and then told the Petitioner that he did not have all the facts yet
that would enable him to discuss the incident with him and that he would discuss the incident with
later.

16. At approximately 10:00 a.m. on December 14, 1990, the Petitioner was advised by Ms. Porter to
return home and await further instructions.

7:7 NORTH CAROLINA REGISTER July I, 1992 776

CONTESTED CASE DECISIONS

17. During the day, while the Petitioner was at home, meetings between management officials of the
agency took place.

18. At approximately 2:00 p.m., the Petitioner received a telephone call from Ms. Porter instructing
him to return to work. He was not informed of the specific reason why he was being recalled.

19. The Petitioner returned to work at about 2:30 p.m. and waited in the anteroom of the Director's
office until Mr. Sellers was ready to meet with him. He was not informed, while he was waiting,
of the precise nature of the meeting with Mr. Sellers. He had not been instructed to be prepared
to defend or explain his action on the evening of December 12, 1990. He had not been told that
he could bring witnesses or that he could request that witnesses be present for examination or
cross-examination.

20. Sometime after 4:00 p.m. on December 14, 1990, the Petitioner met with Mr. Sellers in the pres-
ence of Ms. Porter. When the Petitioner entered the office, Mr. Sellers told him that they were
there to discuss the incident that had taken place in the Corner Cafe in Salemburg, and then
handed the Petitioner a pre-dismissal conference form and asked him to sign it.

21. After reading the pre-dismissal form, the Petitioner refused to sign it because no conference had
yet taken place and he felt that his signing the form would verify and acknowledge that he had been
given a meaningful pre-dismissal conference. Petitioner then asked what was the pomt of having
a conference since Mr. Sellers already had a dismissal letter laying on his desk.

22. After the Petitioner refused to sign the pre-dismissal conference form, Mr. Sellers told the Petitioner
that he had no choice but to dismiss him and handed the Petitioner a previously prepared letter
of dismissal which contained the allegations against the petitioner and asked him if he had anything
to say or write in response to the allegations. The Petitioner's response was, ''What's the point?"

23. When Mr. Sellers met with the Petitioner on the afternoon of December 14, 1990, he knew that
he was going to dismiss the Petitioner unless the Petitioner could offer some reason why he should
not do so. Although he had prepared the letter dismissing the Petitioner prior to the pre-dismissal
conference, Mr. Sellers would have torn the dismissal letter up had the Petitioner given him some
reason to change his mind about dismissing him.

24. Students in firearms classes are taught to never unholster their weapon, unless it is being used in
self-defense, and to never point their weapon at other people.

25. The Petitioner testified that he did not want his job with the Respondent back, that he wanted to
be allowed to resign, and that he wanted to receive three and one-half months salary and his at-
torney's fees.

Based on the foregoing Findings of Fact, the undersigned Administrative Faw Judge makes the
following:

CONCLUSIONS OF LAW

1. North Carolina General Statutes section 126-35 provides, in pertinent part, as follows:

No permanent employee subject to the State Personnel Act shall be discharged, suspended,
or reduced in pay or position, except for just cause.

2. A permanent State employee may be dismissed for ( 1 ) inadequate performance of duties or (2)
personal conduct detnmental to state service. I eipjhart y_ North Carolina School of the Arts. 80
N.C. App. 339, 342 S.E. 2d 914 (1986).

777 7:7 NORTH CAROLINA REGISTER July 1, 1992

CONTESTED CASE DECISIONS

3. Prior to dismissal for cause relating to performance of duties, a permanent State employee is entitled

to three separate warnings that his her performance is unsatisfactory. Jones v\ Department of
Human Resources. 300 N.C. 687, 268 S.E.2d 500 (1980).

4. Dismissal for personal conduct detrimental to state service requires no prior warning. 25 NCAC
U .0608.

5. The Petitioner does not contest the Respondent's finding that the incident took place on December

12, 1990. Rather, even though he concedes that his action reflected poor judgment on his part,
he argues that his conduct did justify his dismissal. The issue, then, is when is the failure to ex-
ercise good judgment an offense for which one could reasonably be expected to be dismissed
without warning.

6. In order for actions resulting from the failure to exercise good judgment to constitute a dismissible
offense, the conduct must have been detrimental to state service. Thus, it is necessary that the
Petitioner's actions have affected his credibility and ability to perform his job duties effectively.

7. There was testimony that firearms instructors teach their trainees to never unholster their weapon
unless it it needed for self-defense and to never point a weapon at anyone. Obviously, while this
canon of conduct is a good practice in general, it specifically applies to a loaded weapon since the
gun has to be loaded in order to defend oneself with it, and since there is no danger that one might
accidentally shoot someone with an unloaded weapon.

8. Certainly, if the gun had been loaded or if an assault had been perpetrated, then the Petitioner's
actions would have warranted immediate dismissal on the basis of unacceptable personal conduct.
In this instance, however, what at first seems to be egregious conduct on behalf of the Petitioner
appears less so when one is aware of all of the facts. The facts in this case indicate that:

a) The weapon was not loaded;

b) Neither the person at whom the Petitioner pointed the gun nor the others sitting at the table
were apprehensive or threatened; and

c) The incident occurred because the Petitioner was attempting to illustrate a work related incident
for two of the trainees in the class he was currently teaching.

9. The totality of the circumstances surrounding the incident in the Corner Cafe suggest that there is
nothing about the Petitioner's conduct that resulted in any detriment to the State. The Petitioner
did not violate any written policy, rule, or regulation. There has been no showing that the
Petitioner's conduct rendered him unable to effectively perform his job duties. A bare allegation
that the Petitioner's conduct caused the Respondent embarrassment is not sufficient It is
incumbent upon the Respondent to demonstrate the nature and the extent of the embarrassment
that Petitioner's conduct caused and to show some concrete detriment to the State.

10. The Petitioner's conduct is more appropriately labeled as a careless error or negligent conduct, both
of which fall within the category' of inadequate job performance for which an employee is entitled
to receive three separate warnings prior to being dismissed.

11. The Respondent has failed to prove by the preponderance of the evidence that the Petitioner's
actions on December 12, 1990 constituted unacceptable personal conduct within the meaning of
section 126-35 of the North Carolina General Statutes and the regulations of the Office of State
Personnel and the Respondent-Agency.

12. The Respondent gave the Petitioner an opportunity to be heard and an opportunity to invoke the
discretion of the decision maker in his favor before the final decision to terminate his employment
was made. The Petitioner, however, failed to take advantage of the opportunity offered him at
his pre-dismissal conference because he felt, erroneously, that nothing he could say would alter the
decision to terminate his employment. The Petitioner received all the protections that the due
process clause was intended to give and the Respondent followed the appropriate procedures
throughout the dismissal process.

7:7 NORTH CAROLINA REGISTER July I, 1992 778

CONTESTED CASE DECISIONS

RECOMMENDED DECISION

The State Personnel Commission will make the Final Decision in this contested case. It is
recommended that the Commission adopt the Findings of Fact and Conclusions of Law set forth
above and reverse the agency's decision to dismiss the Petitioner and permit the Petitioner to resign
from his position with the Respondent. The Commission should award the Petitioner appropriate
back pay from December 14, 1990 until the Petitioner's subsequent employment by the Secretary
of State and thereafter, the differential between his salary with the Respondent as of December 14,
1990 and that which Petitioner is earning with the Secretary of State, and reasonable attorney fees.

NOTICE

Before the Commission makes the FINAL DECISION, it is required by North Carolina Gen-
eral Statutes section 150B-36(a) to give each party an opportunity to file exceptions to this RE-
COMMENDED DECISION, and to present written arguments to those in the agency who will
make the final decision.

The agency is required by North Carolina General Statutes section 150B-36(b) to serve a copy
of the Final Decision on all parties and to furnish a copy to the Parties' attorney of record and to
the Office of Administrative Hearings.

This the 8th day of June. 1992.

Brenda B. Becton
Administrative Law Judge

779 7:7 NORTH CAROLINA REGISTER July I, 1992

CONTESTED CASE DECISIONS

STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

91 OSP079I

DANIEL W. SHERROD,

Petitioner

NORTH CAROLINA DEPARTMENT OF
HUMAN RESOURCES, O'BERRY CENTER,

Respondent

RECOMMENDED DECISION

The above-captioncd matter was heard before Julian Mann, III, Chief Administrative law Judge,
on January 21, 1992, in Raleigh, Wake County, North Carolina. The evidentiary hearing closed on
January 21, 1992. The parties' attorneys of record were given 30 days from receipt of the transcript to
file proposed Findings of Fact and Conclusions of Law. The record closed upon receipt of the docu-
ments described above on April 27, 1992.

APPEARANCES

For Petitioner:

For Respondent:

Andre L. Carson
Carson Legal Services
3305- B Durham Dnve
Raleigh, North Carolina 27603

Michelle B. McPherson

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, North Carolina 27602-0629

WITNESSES

For Petitioner:

Daniel Sherrod (Petitioner)
Shelba G. Poole
Sula N. Ridings

For Respondent:

Willie R. Patterson
Raja Chowdhry
James E. Myers
Sula N. Ridings
.Anne McLamb

EXHIBITS

For Petitioner:

Petitioner's Fxhibits #1. 2. 3, 4, 5, 6, 7, S, 9, 10, 11, 12. 13, 14, 15, 18, 19, 20. 21. 22 and 24

For Respondent:

Respondents Exhibits #2. 3, 4, 5, 6, 6A, 6B, 6C, 6D, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17. 18, 19,
20, 21 and 22

7:7 NORTH CAROLINA REGISTER July I, 1992

7S0

CONTESTED CASE DECISIONS

ISSUE

Whether Respondent discriminated against Petitioner on the basis of his religion in violation of
G.S. 126-36.

STIPULATIONS

On the 21st day of January, 1992, the parties filed a Prehearing Order, which contained, inter alia
the following Stipulations:

"1. It is stipulated that all parties are properly before the court, and the court has jurisdiction of
the parties and of the subject matter.

2. It is stipulated that all parties have been correctly designated, and there is no question as to
misjoinder or nonjoinder of parties.

3. In addition to the other stipulations contained herein, the parties hereto stipulate and agree
with respect to the following undisputed facts:

a. Petitioner was hired on Apnl 23, 1990, as a lead nurse at the pay grade of 69.

b. Petitioner was dismissed on July 31, 1991, for insubordination.

c. Petitioner was a permanent State employee at the time he was dismissed.

4. It is stipulated that each of the exhibits identified by the Petitioner herein is genuine and, if
relevant and material, may be received in evidence without further identification or proof.

5. It is stipulated and agreed that each of the exhibits identified by the Respondent is genuine and,
if relevant and material, may be received in evidence without further identification or proof."

Based upon the Stipulations of the parties, the pleadings, and by the greater weight of the evidence
admitted at the hearing, which by its nature requires determinations of credibility based on personal
observation of witness demeanor, the Chief Administrative Law Judge makes the following:

FINDINGS OK FACT

1. The Office of Administrative Hearings has jurisdiction over the parties and subject matter of
this contested case pursuant to Chapters 126 and 150B of the North Carolina General Statutes.

2. Petitioner is a permanent State employee and resides in Micro, North Carolina.

3. Respondent, an agency of the State of North Carolina, was Petitioner's employer.

4. Petitioner was hired by Respondent on April 23, 1990.

5. Petitioner held the position of lead nurse at O'Bcrry Center, Respondent's residential facility
for the mentally retarded.

6. As a lead nurse, Petitioner was responsible for the total care of the clients under his care and
tor supervising the other nurses on his shift.

7. At all times relevant herein, Petitioner was a member of the Worldwide Church of God.

8. As a member of the Worldwide Church of "God. Petitioner holds the genuine belief that he
may not work on his Sabbath, which extends from sundown on Friday until sundown on Saturday and
on his seven holy days, which occur at various times during the year. (Petitioner's Exhibit =1 and
Respondent's Proposed Findings of Fact #5)

781 7:7 NORTH CAROLINA REGISTER July I, 1992

CONTESTED CASE DECISIONS

9. In conversations with Ms. Sula Ridings and Ms. Willie Patterson, Petitioner informed Re-
spondent of his religious belief concerning the Sabbath as found above, prior to being hired.
(Petitioner's Exhibit #18)

10. Through these agents and employees, Respondent indicated that there would be no problem
in accommodating Petitioner's work schedule in response to his religious belief.*

11. Prior to commencing work with the Respondent, the Petitioner offered to work any shift, any
days, and any hours other than the Sabbath and holy days.

12. Petitioner was a dependable source to use in providing coverage when there was a shortage
of nurses. (Petitioner's Exhibit #14)

13. Erom April 23, 1990, through on or about April 11, 1991, Respondent acknowledged and
accommodated Petitioner's strict observance of the Sabbath Holy Day and Petitioner never worked
from sundown Friday until sundown Saturday.

14. Petitioner was informed through a Memorandum, dated April 1 1, 1991, that the Respondent
would no longer be able to honor its commitment to accommodate Petitioner's religious beliefs con-
cerning the Sabbath. (Respondent's Exhibit #3)

15. Petitioner was informed that he would be required to come in at 5:00 p.m. on alternating
Saturdays. (Respondent's Exhibit #3)

16. This new schedule conflicted with his sundown Sabbath observance for the hours between
5:00 p.m. and sunset, on alternating Saturdays. Therefore, on or after April 11, 1991, Respondent did
not provide Petitioner an opportunity to accommodate his strict observance of the Sabbath.

17. The sunset during the year varies from 5:01 p.m. in December, to 8:35 p.m. in June.

18. The Respondent's change in its accommodation practice was stated to the Petitioner to be for
the reason that Respondent did not have enough staff to give each nurse every other weekend off
without paying overtime, which had to be kept to a minimum because of budget restrictions. (Re-
spondent's Exhibit #3)

19. At all times relevant hereto it was Respondent's common practice to allow nurses to work
overtime on the weekend shifts.

20. The nurses' work schedule was made with as many days and shifts covered as possible given
the number of available nurses. Nurses signed up to work the uncovered shifts on their days off.

21. On or about April 11, 1991, Respondent informed the Petitioner that Petitioner, on his own
initiative, could trade schedules with any other R.N. or L.P.N, so long as it did not create additional
overtime.

*The North Carolina Office of State Personnel, Personnel Manual, Section 12, Page 37
states:

"An employer has the obligation to make reasonable accommodation to the
religious needs of his employees, where such accommodations do not force
undue hardship on the employer. The employer must prove that such religious
accommodations cause undue hardship to his business."

7:7 NORTH CAROLINA REGISTER July I, 1992 782

CONTESTED CASE DECISIONS

22. During the months of June and July, 1991, prior to Petitioner's dismissal, registered nurse
(R.N.), Ms. Shelba Poole, offered to enter into a permanent arrangement with the Petitioner whereby
Ms. Poole would work every Friday and Saturday, and the Petitioner would work every Sunday and
Monday. (Respondent's Exhibit #11)

23. Ms. Poole worked the same shift as the Petitioner, and this proposed arrangement would have
provided the nurse coverage that the Respondent was seeking.

24. Ms. Poole was employed as a lead nurse at Respondent O'Berry Center, with the same title
and responsibilities as the Petitioner.

25. Ms. Poole had 27 years of professional experience as a registered nurse, all with State insti-
tutions in North Carolina.

26. Ms. Poole was a nurse supervisor for 15 years prior to her employment at the O'Berry Center

27. Ms. Poole has an unblemished record of service with the State of North Carolina.

28. During the month of June, 1991, Ms. Poole learned of the conflict that the Petitioner was
having with Respondent concerning his scheduled work and his religious observance of the Sabbath

29. Once Ms. Poole established to her satisfaction that the Petitioner was a good nurse, she went
to the Petitioner's supervisor. Ms. Willie Patterson, and offered to work for the Petitioner every
Sabbath. (Respondent's Proposed Finding #46)

30. Ms. Patterson rejected the proposal, as did her supervisor, Ms. Sula Ridings, for the stated
reason that the Petitioner would not guarantee to cover for Ms. Poole when she took leave if it con
flirted with Petitioner's Sabbath observance. (Respondent's Fxhibit #1 1)

31. Ms. Poole averaged a week of vacation two times a year, and used her other vacation days a
day or two at a time.

32. Vacation leave was scheduled and planned in advance.

3}. Overtime restrictions and payment were not stated to Petitioner on or about July 15, 1991,
as reason to reject the arrangement between the Petitioner and Ms. Poole's proposed accommodation.
(Respondent's Exhibit #11)

34. After the Petitioner was terminated, Ms. Poole left the employ of Respondent (O'Berry
Center) because she felt that the institution had not honored its agreement with the Petitioner.

35. During the month of May. 1991, Ms. Terri Deaver, R.N., offered to rearrange schedules with
the Petitioner on one occasion, to allow him to observe the Sabbath, which was an offer of an ac-
commodation as stated to be available to Petitioner. (Respondent's Exhibit #3)

36. Ms. Deaver stayed over for the Petitioner from 5:00 p.m. until sundown at 8:30 p.m. when
the Petitioner arrived.

37. After the exchange, the supervisor. Ms. Patterson, refused to compensate Ms. Deaver for the
time worked because they had not consulted her prior to the exchange.

38. As a result, the Petitioner paid Ms. Deaver $65.00 from his funds to compensate her for the
time she had worked.

39. After the incident, Ms. Deaver did not exchange time with the Petitioner again.

7S3 7:7 NORTH CAROLINA REGISTER July 1, 1992

CONTESTED CASE DECISIONS

40. Both supervisors, Ms. Ridings and Ms. Patterson, did not view that it was their responsibility
to seek other methods or other personnel scheduling to accommodate Petitioner in his Sabbath
observance.

41. Respondent recorded no other disciplinary actions against the Petitioner's work performance.
Petitioner was considered a very competent nurse.

42. The only disciplinary actions that were issued against the Petitioner were taken because he
reported for work late due to his Sabbath observance, although Petitioner had informed his supervisor
in advance that he would be reporting later for work on each of the evenings that he was scheduled to
report before sundown.

43. The following schedule illustrates the times that the Petitioner was scheduled to report to
work, the time that the Petitioner reported to work, and the disciplinary action that followed:

Reported Disciplinary

Date Scheduled In Action

May 25, 1991 5:00 p.m. 8:30 p.m. Counseling memo

June 1,1991 5:00 p.m. 8:30 p.m. Written Warning

June 8,1991 5:00 p.m. 8:30 p.m. Conference

June 22, 1991 5:00 p.m. 8:30 p.m. Final Written Warning

July 6,1991 5:00 p.m. 8:30 p.m. Dismissal

44. These disciplinary actions (for the most part) were taken during the time that Ms. Poole of-
fered to enter into a permanent arrangement with the Petitioner to allow the Petitioner to accommodate
his Sabbath observance with de minimis or no overtime compensation.

45. By letter of July 16, 1991, Petitioner was dismissed for alleged insubordination. (Respondent's
Exhibit # 1 2)

46. By letter of August 5. 1991, Petitioner was offered the remedy of voluntary resignation ac-
companied bv the removal of all disciplinary actions from Petitioner's disciplinary file. (Respondent's
Exhibit #13)'

47. Subsequent to Petitioner's termination, Mr. Chowdhry discussed with Petitioner his continued
employment with Respondent with strict Sabbath observance for an additional six months while
Petitioner pursued other employment. No mention was made to Petitioner concerning overtime re-
strictions.

Based upon the foregoing Stipulations and Findings of Fact, the undersigned makes the following:

CONCLUSIONS OF LAW

1. Petitioner is a permanent State employee as defined in G.S. 126-39.

2. The Office of Administrative Hearings has jurisdiction over the parties and subject matter
pursuant to Chapters 126 and 150B of the North Carolina General Statutes and to issue a recom-
mended decision to the State Personnel Commission which shall make the final decision.

3. Petitioner's allegations of dismissal for causes related to his observance of religious beliefs give
rise to a potential violation of the religious discrimination prohibitions in G.S. 126-36 and G.S.
126-37(a).

4. In order for Petitioner to establish a prima facie case of religious discrimination under G.S.
126-36, the Petitioner must prove:

(1) that Petitioner held a bona fide religious belief or engaged in a bona fide religious practice;

7:7 NORTH CAROLINA REGISTER July I, 1992 784

CONTESTED CASE DECISIONS

(2) that the Respondent-employer had notice of the Petitioner's beliefs; and

(3) that the Petitioner was discharged for refusing to comply with an employment requirement be-
cause it was contrary to his beliefs.

5. Petitioner held a bona fide religious belief or practice that working on his Sabbath violated a
religious tenet of his church, as expressed in the doctrine of the Worldwide Church of God.

6. Prior to his employment with Respondent, Respondent was aware of his belief. (Petitioner's
Exhibit #18)

7. Petitioner was discharged for insubordination because Petitioner failed to report to work during
his Sabbath observance.

8. Petitioner has carried his burden of proof that he has genuine belief that compliance with the
requirement that he work on his Sabbath is contrary to his religious belief and practice which prohibits
him from working on his Sabbath, that he told his employer about his belief prior to being employed,
and that he was discharged for refusing to comply with that requirement. (Respondent's proposed
Conclusion of Law #5)

9. Once Petitioner establishes his prima facie case, the burden shifts to the Respondent to show
that it could not reasonably accommodate the Petitioner's belief without undue hardship.

10. Respondent was required to take affirmative steps to explore and implement alternatives that
would accommodate Petitioner's religious practices. In fact. Respondent, for a period of almost one
year, admirably performed this accommodation.

1 1. The Respondent failed to take affirmative steps on behalf of the Petitioner because its super
visors. Ms. Ridings and Ms. Patterson, did not feel that is was their duty to seek out other people to
swap davs with the Petitioner, but that this responsibility rested solely with the Petitioner after April
of 1991.'

12. Respondent informed the Petitioner that Petitioner could trade schedules with another nurse
so long as it did not create additional overtime. (Respondent s Pxhibit #3) These were the terms of-
fered to Petitioner without further efforts of accommodation by Respondent.

13. A reasonable accommodation was available to Respondent when Ms. Poole offered to enter
into a permanent arrangement with the Petitioner whereby Ms. Poole would work every Friday and
Saturday, and the Petitioner would work every Sunday and Monday. (Respondent's Exhibit =1 1)

14. Ms. Poole worked the same shift as the Petitioner, and this proposed arrangement would have
provided the nurse coverage that the Respondent was seeking.

15. Ms. Poole was employed as a lead nurse at Respondent O'Berry Center, with the same title
and responsibilities as the Petitioner.

16. Ms. Poole has 27 years of professional experience as a registered nurse, all with State insti-
tutions in North Carolina.

17. Ms. Poole was a nurse supervisor for years prior to going to O'Berry Center.

IS. Ms. Poole has an unblemished record of service with the State of North Carolina.

19. Ms. Poole supported the need for accommodation, and offered to work for the Petitioner
every Sabbath.

785 7:7 NORTH CAROLINA REGISTER July 1, 1992

CONTESTED CASE DECISIONS

20. The proposed accommodation would not have generated any additional overtime at the Re-
spondent agency. If it had generated overtime the cost to Respondent was de minimis.

21. The proposed accommodation would have covered every weekend between the two of them,
would not have violated any overtime restrictions or the policy of granting each nurse every other
weekend off. (Respondent's Exhibit #11, Respondent's Exhibit #3)

22. The Respondent never tried to effect the reasonable accommodation available to it. (Re-
spondent's Exhibit #11)

23. The Respondent did not go forward with its burden of production that undue hardship would
result from accommodating the Petitioner with the arrangement proposed by Ms. Poole. Petitioner
proved by the greater weight of the evidence that this accommodation was not an undue hardship for
Respondent.

24. The only defense offered as to an undue hardship did not relate to the cost of this arrangement
but that Petitioner himself would not later violate his religious belief by working on the Sabbath IF
AND WHEN Ms. Poole took leave (planned or otherwise) at some future and indefinite point when
this future leave happened to fall on a Saturday. This arrangement was not a hardship (undue or
otherwise) for the Respondent as all employees who take leave must be covered. The accommodation
scheme was not burdensome; not a hardship and certainly not an undue hardship.

25. A second reasonable accommodation was available to Respondent when Ms. Deaver, R.N.,
offered to rearrange schedules with the Petitioner on one occasion, to allow him to observe the Sabbath.

26. .After the exchange, the supervisor, Ms. Patterson, refused to compensate Ms. Deaver for the
time worked because they had not consulted with her about the exchange.

27. As a result, the Petitioner paid Ms. Deaver $65.00 to compensate her for the time she had
worked.

28. The failure of the Respondent to allow this accommodation had a chilling effect on any further
accommodation attempts by Ms. Deaver.

29. This second accommodation with Ms. Deaver was also without undue hardship to Re-
spondent. Any inconvenience was within the scope of Respondent's affirmative duty to accommodate
Petitioner's religious beliefs.

30. Petitioner has, in all respects, carried his burden of proof of religious discrimination under
G.S. 126-36 and is entitled to all relief that flows therefrom.

Based upon the foregoing Stipulations, Findings of Fact and Conclusions of Law, the undersigned
makes the following:

RECOMMENDED DECISION

That the Respondent's decision to dismiss the Petitioner, Daniel W. Sherrod, on July 31, 1991, for
insubordination be reversed on the basis of religious discrimination. It is recommended that the
Petitioner be reinstated to the position he held prior to his termination; that he receive back pay from
the date of his dismissal to the date of his reinstatement; that he receive reasonable attorney's fees and
costs; and that he receive all benefits to which he would have been entitled but for his involuntary
separation on July 31, 1991.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Adminis-
trative Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina
General Statute 15UB-36(b).

7:7 NORTH CAROLINA REGISTER July I, 1992 7S6

CONTESTED CASE DECISIONS

NOTICE

The agency making the final decision in this contested case is required to give each party an op
portunity to file exceptions to this recommended decision and to present written arguments to those in
the agency who will make the final decision. G.S. 150B-36(a).

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and
to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.

The agency that will make the final decision in this contested case is the North Carolina State
Personnel Commission.

Thus the 9th day of June. 1992.

Julian Mann, III

Chief Administrative Law Judge

787 7:7 NORTH CAROLINA REGISTER July 1, 1992

NORTH CAROLINA ADMINISTRA TIVE CODE CLASSIFICA TION SYSTEM

1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of
these, titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each
major department in the North Carolina executive branch of government has been assigned a title
number. Titles are further broken down into chapters which shall be numerical in order. The other
two, subchapters and sections are optional subdivisions to be used by agencies when appropriate.

TITLE/MAJOR DIVISIONS OF THE NORTH CAROLENA ADMINISTRATIVE CODE

riTLE

DEPARTMENT

LICENSING BOARDS

CHAPTER

Administration

Architecture

Agriculture

Auctioneers

Auditor

Barber Examiners

Economic and Community

Certified Public Accountant Examiners

Development

Chiropractic Examiners

Correction

Genera] Contractors

Council of State

Cosmetic Art Examiners

Cultural Resources

Dental Examiners

Elections

Dietetics Nutrition

Governor

Electrical Contractors

Human Resources

Electrolysis

1')

Insurance

Foresters

Justice

Geologists

Labor

Hearing Aid E>ealers and Fitters

14A

Crime Control and Public Safety

Landscape Architects

15A

Environment, Health, and Natural

Landscape Contractors

Resources

Martial & Family Therapy

Public Education

Medical Fxaminers

Revenue

Midwifery Joint Committee

Secretary of State

Mortuary Science

19A

Transportation

Nursing

Treasurer

Nursing Home Administrators

+21

Occupational Licensing Boards

Occupational Therapists

Administrative Procedures

Opticians

Community Colleges

Optometry

Independent Agencies

Osteopathic Examination and

State Personnel

Registration (Repealed)

Administrative Hearings

Pharmacy

Physical Therapy Fxaminers

Plumbing, Heating and Fire Sprinkler

Contractors

Podiatry Examiners

Practicing Counselors

Practicing Psychologists

Professional Engineers and Land Surve)

ors 56

Real Estate Commission

Refrigeration Fxaminers

Sanitarian Fxaminers

Social Work

Speech and Language Pathologists and

Audiologists

Veterinary Medical Board

Note: Title 21 contains the chapters of the various occupational licensing boards.

7:7 NORTH CAROLINA REGISTER July I, 1992

788

CUMULA TIVE INDEX

CUMULA THE INDEX

(April 1992 - March 1993)

1992

1993

Pages

Issue

1 - 105 1 - April

106 - 173 2 - April

174 - 331 3 - May

332 - 400 4 - May

401 - 490 5 - June

491 - 625 6 - June

626 - 790 7 - July

AO - Administrative Order

AG - Attorney General's Opinions

C - Correction

FR - Final Rule

GS - General Statute

JO - Judicial Orders or Decision

M - Miscellaneous

NP - Notice of Petitions

PR - Proposed Rule

TR - Temporary Rule

ADMINISTRATION

Auxiliary Services, 4 PR

AGRICULTURE

Gasoline and Oil Inspection Board, 336 PR
Structural Pest Control Committee, 332 PR
Veterinary Division, 342 PR

ECONOMIC AND COMMUNITY DEVELOPMENT

Banking Commission, 629 PR

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES

Coastal Management. 211 PR, 655 PR

Environmental Health. 223 PR

Environmental Management. 190 PR, 416 PR, 500 PR, 644 PR

Governor's Waste Management Board. 564 PR

Health: Epidemiology, 140 PR

Health Senices, 52 PR. 659 PR

Marine Fisheries. 530 PR

NPDES Permits Notices. 1, 107

Radiation Protection, 136 PR

Vital Records, 565 PR

Wildlife Resources Commission, 28 PR, 133 PR, 408 C. 449 PR, 551 PR

Wildlife Resources Commission Proclamation. 176

7:7 NORTH CAROLINA REGISTER July 1, 1992

CUMULA TIVE INDEX

FINAL DECISION LETTERS

Voting Rights Act, 106, 174, 406, 493, 628

GOVERNOR/LI. GOVERNOR

Executive Orders, 401, 491, 626

HUMAN RESOURCES

Agine, Division of, 121 PR, 346 PR

Day Care Rules, 123 PR

Economic Opportunity, 5 PR

Facility Services, 111 PR, 177 PR, 496 PR, 634 PR

Medical Assistance, 4 PR, 415 PR, 496 PR

Mental Health, Developmental Disabilities and Substance Abuse Services, 111 PR, 297 FR, 409 PR

Social Services Commission, 183 PR

LNDEPENDENT AGENCIES

Housing Finance Agency, 450 PR, 576 PR

ENSURANCE

Consumer Services Division, 125 PR

Departmental Rules, 7 PR

Engineering and Building Codes, 19 PR, 643 PR

Fire and Rescue Services Division, 17 PR

Hearings Division, 124 PR

Life and Health Division, 22 PR, 347 PR

Property and Casualty Division, 20 PR

Seniors' Health Insurance Information Program, 132 PR

JUSTICE

Alarm Systems I icensing Board, 27 PR, 189 PR, 643 PR

General Statutes Commission, 353 PR

State Bureau of Investigation, 188 PR, 499 PR

LICENSING BOARDS

Certified Public Accountant Examiners, Board of, 355 PR

Cosmetic Art Examiners. 360 PR

Electrolysis Examiners, Board of, 69 PR, 700 PR

Nursing, Board of, 232 PR. 700 PR

Professional Engineers and Land Surveyors, 566 PR

Speech and Language and Pathologists and Audiologists, 705 PR

LIST OF RULES CODIFIED

List of Rules Codified, 72, 362, 452, 584

REVENUE

License and Excise Tax. 712 ER
Motor Fuels Tax Division, 361 FR

STATE PERSONNEL

Office of State Personnel. 237 PR, 705 PR

TAX REVIEW BOARD

Orders of Tax Review Board, 494

TRANSPORTATION

Highways, Division of, 228 PR

Motor Vehicles, Division of, 6S PR, 142 PR

7:7 NORTH CAROLINA REGISTER July I, 1992 790

NORTH CAROLINA ADMINISTRATIVE CODE

The full publication consists of 53 volumes, totaling in excess of J 5,000 pages. It is supplemented monthly
with replacement pages. A one year subscription to the full publication including supplements can be
purchased for seven hundred and fifty dollars ($750.00). Individual volumes may also be purchased with
supplement sen'ice. Renewal subscriptions for supplements to the initial publication are available at one-
half the new subscription price.

PRICE LIST FOR THE SUBSCRIPTION YEAR

Volume

Title

Chapter

Subject

New
Subscription*

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Quantity Price

1 - 52

Full Code

10
10

11
12
13
13
13
14A

1 5 A
1 5A
15A
15A
1 5 A

1 - 37
1 - 24
25- 52
1 - 4
1 - 2
3 - 20
1 - 2
3 -4
1 - 4
1 - 12
1 - 9
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3 A - 3K
3L- 3R

3S - 3\V

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11-14

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10

/Ml titles
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Agriculture
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Auditor

ECD (includes ABC)
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Correction
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Cultural Resources
Elections
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(includes CON)
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OS HA
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$750.00
90.00
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75.00
10.00
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90.00
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60.00
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90.00

45.00
30.00
30.00

30.00
30.00
30.00
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60.00
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90.00
90.00
90.00
30.00
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45.00

45.00
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Continued

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4')

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Fducation

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Revenue

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1 - 8

Secretary of State

30.00

1 - 6

Transportation

90.00

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Treasurer

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1 - 16

Licensing Boards

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MAIL TO:

OFFICE OF ADMINISTRATIVE HEARINGS

POST OFFICE DRAWER 27447
RALEIGH, NORTH CAROLINA 27611-7447

LWL-U9LZ BUIPJB3 qjJOM 'qSiaiEH

LYPLZ J3a\bjq O d

sSui JB3H 3AI}BJ)SIUIIUPV JO 33JJJO

FOLD HERE

NORTH CAROLINA REGISTER
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rn to Office of Administrative Hearings - fold at line, staple at bottom and affix postage.)

CHANGE OF ADDRESS:

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NAME

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CITY

STATE

ZIP

2. New Address

NAME

ADDRESS

CITY

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ZIP

Office of Administrative Hearin]

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